What Can Be A Logical End To The Judicial Appointments Debate?

In this second article of the special series on the 74th Republic Day, we will deliberate on the recent controversy surrounding appointments in the higher Indian Judiciary.

Read the first piece on the 'Basic Structure' issue here.

In recent weeks, the Supreme Court (SC) is seen to be at loggerheads with the centre, on the method of judicial appointment. Several political functionaries, including the Law Minister, can be seen voicing their concern for bringing back the National Judicial Appointment Commission (NJAC).

On the other side, the Supreme Court under the leadership of Chief Justice of India (CJI) Chandrachud, is firm on their mandate to the continue with the collegium system of appointment, which has been touted as 'opaque and unaccountable'.

The appointment of judges to the Supreme Court and High Courts (HC) has been mandated in Article 124(2) and Article 217(1) of the Constitution, respectively.

The provisions provide that the power to appoint the Judges vests with the President, ‘in consultation’ with the Chief Justice of India for the SC, and for the concerned High Court — ‘in consultation’ with the CJI, the Governor of the concerned state and the Chief Justice (CJ) of the High Court. 

However, the Supreme Court through different rulings on the issue has ruled that “in consultation”, connotes “concurrence” and that the CJI holds primacy in Judicial Appointments. The undesirable system of collegium came into being through these rulings itself.

Let us understand how exactly the collegium system of appointment works.

For High Courts, the collegium comprises of the Chief Justice along with the next two senior judges of the High Court; for Supreme Court, the collegium consists of the Chief Justice of India, along with the next four senior judges of the Supreme Court.

For appointment of High Court Judges, the HC collegium recommends names of suitable candidates, which is forwarded to the SC collegium. When the names reach the Supreme Court collegium, the appointment process for HC and SC judges is same.

The SC collegium deliberates on the names they consider suitable, and then, accordingly the names are recommended for appointment to the central government, the President of India being the appointing authority.

Then the central government, in consultation with the Ministry of Law and Justice, along with the Intelligence Bureau, conduct their due diligence on the recommended names.

Now, when the names are with the government, it can either refer back any name to the collegium for reconsideration, keep the names pending or appoint them with the assent of the President.

The issue which the government appears to have with the collegium system of appointment is that, it is opaque and unaccountable. The names recommended for appointment are only deliberated within the four walls of the CJI’s chamber and the reasons for such recommendations are never communicated with the government.

Through this, lawyers having connections within the higher judiciary have been observed to enjoy a greater chance of being recommended, while the competency and merit take a back seat.

As a group of senior judges recommend names for appointment of new judges, it is bound to be coloured with bias and prejudice.

One of the important principles of natural justice is that, 'no one can be judge in his own cause'. But the Supreme Court collegium itself is defying this principle since decades.

At present, there is a huge impasse between the central government and the Judiciary.

While the government is rigid on not appointing candidates it considers unsuitable and therefore, files remain pending for years, on the other hand, the Supreme Court is even more firm on reiterating certain names — twice and sometimes, even, thrice.

What in turn is happening, is that, there is a continous rise in judicial vacancies, thereby, directly impacting the huge pendency of cases.

With Justice Chandrachud at the helm of affairs, any talks of a middle ground also seems unlikely, till the end of 2024.

However, in order to fulfil the Constitutional oath by which all the judges are bound, it the duty of the Supreme Court to find a workable solution.

All things considered, the collegium system is something that we cannot go ahead with, and the central government has got numerous ways to not appoint unsuitable candidates.

Therefore, it is of utmost importance NJAC system be adopted and that the judiciary expresses it concerns within that system. Do note, that even the NJAC keeps the judiciary on a higher pedestal than the government.

The NJAC comprised of the Chief Justice of India as the Chairperson, two other Senior Judges, the Union Minister of Law and Justice, and two eminent persons. These eminent persons were to be appointed by a committee consisting of the CJI, the Prime Minister and Leader of Opposition.

The act also provided that the commission shall not recommend a person for appointment if any two of its members do not agree to such recommendation.

The Supreme Court had severe problems with the power of veto given to the two eminent persons, as they would be someone not particularly trained in legal matters and they would have the power to veto the names recommended by the other four members.

This writer's argument is that, if the Supreme Court had some reservations, it can always have a dialogue with the government through the Attorney General and reasonable alternatives can be sought.

Anything in between ‘judicial primacy’ and ‘executive primacy’ in appointments, can be a workable solution to this long existing impasse between the two bodies.