17/10/2015 8:28 AM IST | Updated 15/07/2016 8:25 AM IST

Collegium System Is Ailing, But NJAC 'Remedy' Would Have Made Matters Worse

SAJJAD HUSSAIN via Getty Images
A view of the Indian Supreme Court in New Delhi on July 28, 2015. India's Supreme court refered Yakub Memon's petition against his death sentence for his role in the 1993 Mumbai bomb blasts to a larger bench after a two judge bench delivered a split verdict. AFP PHOTO / SAJJAD HUSSAIN (Photo credit should read SAJJAD HUSSAIN/AFP/Getty Images)

On 16 October, the Supreme Court finally decided that the primacy of the judiciary in the appointment of judges will be maintained, striking down the National Judicial Appointment Commission (NJAC) Act, 2014 which proposed a committee comprising three judicial and three non-judicial members. The three judicial members proposed were the Chief Justice of India and two seniormost judges of the Supreme Court; the non-judicial members were two eminent persons to be selected by a separate selection committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition; the Union Law Minister was proposed to be the ex-officio member of the Commission.

The validity of the above legislation was challenged and after a prolonged hearing of 31 days by a Constitution Bench, the Supreme Court decided by a majority of 4:1 that the NJAC is unconstitutional because it tampers with the independence of the judiciary which in turn is part of the basic structure of the Constitution.

"[T]he government should do its homework before it comes out with another legislation to override the Supreme Court judgment."

To put matters in perspective, judges weren't always appointing other judges in India. For the first 42 years of the Supreme Court's existence, from 1950 until 1992, the Executive had primacy in matters of the appointment and transfer of judges. In fact, as late as 1982, in the SP Gupta case, popularly known as Transfer of Judges case, the majority opinion of the Supreme Court was that the role of the Chief Justice in appointment of judges was only of a consultative nature and not binding on the government.

This situation was changed in 1993 when in the Supreme Court Advocate On-Record Association case, the Supreme Court for the first time came out with the view that the opinion of the Chief Justice of India with the other two seniormost judges would be binding on the government in matters of the appointment and transfer of judges to the Supreme Court and high courts. Thus started the collegium system of appointment of judges by judges. In 1998, the number of collegium was increased from three senior-most judges to five, including the CJI. This was the system in operation until the government came up with the NJAC Act, 2014.

During the course of arguments, those who challenged the NJAC contended that the independence of the judiciary should be protected at all costs and that defects in the collegium system could be rectified by other means. On the other hand, the government argued that the lack of transparency and favouritism in the collegium system could only be addressed by an overhaul of the system to allow a more transparent, broad-based consideration of candidates. Judges, they said, must be appointed by a panel of judges and non-judges, and that the government should have a decisive say in the matter.

After hearing all the sides, the Supreme Court decided to continue with the collegium system, although it did call for a separate review of the process in order to address flaws and transparency issues.

In my opinion, the collegium system did provide relative autonomy and independence to the higher judiciary. In India, the biggest litigator is the government itself, with a major chunk of cases either filed by or against the government (both Central and state). To ensure impartiality of the system in such a scenario, the government should not have an overriding say in the appointment of judges. To this extent, the collegium system is preferable to the process prevailing up to 1992.

There is no denying that the need for transparency in the appointment and transfer of judges, applications of right to information to the judiciary and opening up the zone of consideration to candidates coming from a broad range of classes are necessary corrections for the collegium system. That said, the remedy suggested by the government through the NJAC was worse than the problem. The Supreme Court has rightly decided that the baby cannot be thrown out with the bathwater. It has preserved the independence of the judiciary even as it has demonstrated a willingness to accommodate suggestions to address problems. The Supreme Court will now hear suggestions for improvement in the collegium system on 3 November 2015. It is a step in the right direction.

In the meantime, the government should do its homework before it comes out with another legislation to override the Supreme Court judgment.

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