The procedure for appointment of judges to the Supreme Court and the High Courts has been enshrined in Article 124 and Article 217 according to which the President is to appoint the said judges under his hand and seal subsequent to ‘consultation’ with the other judges of the said Courts, as the president may deem necessary. This procedure, expressly given in the Constitution, when read in conjunction with Article 74 gives the final say to the Executive in the matter of appointments. The practice largely followed till 1981 was that the proposal for appointment of an individual as a judge would be initiated by the Chief Justice who, after consultation with other judges, would forward the name to the President who would, if he agreed, finalize the appointment on the aid and advice of the Council of Ministers.
The aforementioned constitutional provisions have, however, been interpreted rather interestingly by the Supreme Court in the following landmark cases concerning appointment of judges. In the case of S.P. Gupta v. Union of India the balance was tilted in favour of the Executive in that the court held that appointment of judges could be initiated by any of the functionaries in Article 217 with the President’s word being final in matters of appointment. Subsequent to this decision several appointments were made wherein the Executive’s opinion had primacy over the Chief Justice’s. However, the same was overruled in Supreme Court Advocates-on-Record Association v. Union of India (hereinafter ‘SCAORA’) wherein the court, putting in place a collegium system for appointment of judges in an attempt to safeguard the independence of the judiciary, held that the recommendation made by the Chief Justice after consultation with collegium must normally be given effect to by the Executive. This decision also gave primacy to the Chief Justice’s opinion in the matter of appointments. Subsequently, in the 1998 Presidential Reference under Article 143, a nine judge bench of the Supreme Court, while largely affirmed the SCAORA judgment, enlarged the composition of the ‘collegium’. Many have been critical of the Supreme Court on the grounds that these opinions rendered by the highest court, tilting the balance with respect to appointment of judges completely in favour of the judiciary, have brought in place a procedure for judges’ appointment which is a deviation from the one contemplated by the Constitution framers in the text of Articles and such interpretation of the Constitutional text has effectively resulted in rewriting of the Constitution by the Supreme Court which is clearly outside the ambit of the Judiciary.
While the criticism to the Second and Thirds Judges’ cases is justified for the Supreme Court deviated completely from the textual provisions of the Constitution under the garb of interpretation and made the judiciary a judge in its own cause, thereby violating the principle of natural justice nemo iudex in causa sua, insofar as the Chief Justice’s opinion in appointment of judges held primacy, it must be appreciated that the said developments, like most developments in constitutional law, did not come into place in political vacuum. At a time when an integral institution like the Judiciary was on the verge of being packed with pro government judges as a result of the Executive resorting to unprecedented practices in judicial appointments in their attempt to obtain a ‘committed judiciary’, it was imperative for the Supreme Court to step in and defend the Judiciary whose purpose, amongst others, was to serve as a counter-majoritarian institution. Furthermore, the Memorandum issued by the Ministry of Law and Justice subsequent to the SCAORA case as well as the undertaking rendered by the Attorney General in the Reference made in 1998 is proof of the Ministry and Government’s approval of the Supreme Court’s pronouncements at the time.
Over the years, however, the collegium system has developed cracks that were once inconceivable in light of the respect that the judiciary, as an institution, enjoyed. The collegium system has allegedly paved way for grudges harboured by senior most judges affecting judicial appointments, making the collegium an unaccountable, powerful, non- transparent system of judicial appointments, so much so that many eminent members of the bar have voiced their opinions against the system.
The most recent development, however, has been the passing of The Constitution (Ninety Ninth Amendment) (hereinafter ‘the Bill’) in the Rajya Sabha on 5th September, 2013 which seeks to replace the current collegium system of appointment of judges put in place in the aforementioned cases with a Judicial Appointments Commission (hereinafter ‘JAC’), the composition of which will be aimed at striking a balance between powers of the judiciary and the executive in the appointment of judges in furtherance of the independence of this counter-majoritarian, corrective organ of the State. It is pertinent to note at this juncture that a similar amendment bill was tabled in the Lok Sabha as the Constitution (Sixty-seventh Amendment) Bill, 1990 by the then Minister for Law and Justice, however, the same lapsed on the dissolution of the Lok Sabha. Similar to the Bill, the 1990 bill sought to put to rest the criticisms of arbitrariness levelled against the Executive in appointment of judges by creating an Appointments Commission which was to comprise of the Chief Justice of India and two senior most judges.
While in light of the aforementioned developments the Bill does not seem entirely misplaced, many concerns have been raised subsequent to passage of the bill. The most important criticism that the Bill stands to face is the fact that the composition of the JAC and the procedure followed by it in discharge of its functions, has been made the Parliament’s prerogative. The composition of the JAC is most critical in determining whether the real motive behind passage of the said bill was to restore the balance between the Executive and the Judiciary or to tilt it largely in the Executive’s favour. Further, allowing the Parliament to enact a statute to determine the constitution and procedure for the JAC is a severe blow to the independence of the Judiciary as their appointment, which enjoyed Constitutional protection hitherto, will be amenable to amendments like any other statute. Secondly, the hasty manner in which the Bill has been passed in the Rajya Sabha, refusing the BJP’s demand to refer is to a Standing Committee in order to incorporate comprehensively opinions from all stakeholders, a practice which is largely followed for passage of most bills in the parliament, when seen in light of the number of Supreme Court judges retiring in 2014, gives room for suspicion as to the intention of the UPA behind the hasty passage of the Bill.
In this tussle between the Judiciary and the Executive, what must not be forgotten is that fact that the Supreme Court, in Alexander Hamilton’s words, controls neither the purse nor the sword and owes its allegiance to the Constitution and not the government in power. It is in this spirit that it is argued that the procedure that must be adopted should be one that strengthens and reinforces the counter-majoritarian and independent role of the Supreme Court, as envisaged by the framers and therefore, this procedure must be alive to the political realities of the country. Given the fact that independence of the judiciary has been held to be a basic feature of the Constitution and the circumstances in which the Bill has been passed, it is anyone’s guess what the Supreme Court’s opinion of it will be if its constitutionality were to be challenged in the apex court. While it appears from the passing of this Bill in the Upper House, given that its passage in the Lower House is only a matter of time given the numbers the UPA enjoys in the Lower House and the fact that fourteen State governments are Congress led, that we have come a full circle since the S P Gupta case, the last of this debate between the Executive and the Judiciary is yet to be witnessed.
This article has been written by Kritika Vohra, a third year student at the West Bengal National University of Juridical Sciences and Director of the Constitutional Law Society, NUJS.