By Dr Lokendra Malik
Justice SA Bobde became the first chief justice of India (CJI) who could not make even a single recommendation for appointing a judge to the Supreme Court during his tenure spanning over 17 months. One main reason behind this failure appears to be the lack of consensus among the collegium members.
Currently, the Supreme Court has seven vacancies of judges, and four more judges will retire by the end of this year. Surprisingly, the last appointment of a judge in the Supreme Court was made in September 2019 during the then CJI Ranjan Gogoi’s tenure. In his last days in office, CJI Bobde called a meeting of the collegium, despite reservations of at least two of his colleagues, to build consensus. Unfortunately, he failed to break the deadlock. It shows that the trust deficit amongst collegium members runs deep and the new CJI should take it seriously.
Under the Indian constitutional scheme and practice and established after three judgments of the Supreme Court relating to judges’ appointments delivered in 1993, 1999, and 2015, respectively, the president of India appoints the judges of the Supreme Court and High Courts in consultation with the CJI and some of his senior-most colleagues. Though the consultation with the CJI has always been mandatory, it was not very effective in the pre-collegium system in which the central government’s position was very powerful. But in the collegium system, the president is bound to appoint the judges of the Supreme Court and High Courts on the recommendations of the Supreme Court collegium headed by the CJI and consisting of some of his senior-most colleagues who finalise the names of judges by consensus.
The collegium system was devised by the Supreme Court in the 1993 Second Judges case. Initially, the collegium had three senior-most judges, including the CJI but its aura was expanded by the Supreme Court in the Third Judges case in 1999 after experiencing some difficulties in this system for a few years when the central government approached the Supreme Court through presidential reference under Article 143 of the Constitution. In 2015, the central government brought the National Judicial Appointments Commission (NJAC) Act to abolish the collegium system but the Supreme Court poured cold water on the government’s attempt in the Fourth Judges case and struck down the NJAC Act. However, the Court admitted certain lapses in the collegium’s functioning and said such loopholes would be removed but nothing happened.
Notably, the CJI heads the collegium but he has no veto power over his colleagues. He convenes the meetings of the collegium, sets its agenda and presents the proposals for judges’appointments before his four colleagues who consider such names and take the decisions by consensus in writing. The CJI cannot recommend any name to the president if two or more collegium members oppose it, and even if he sends his recommendation to the president, the latter is not bound to accept such recommendation.
On the other hand, no proposal for recommending a judge’s appointment can be approved if the CJI does not give his nod. In other words, the four collegium members cannot send their recommendations to the president by ignoring the CJI’s view. It is the CJI who is the main link of correspondence between the president and the Supreme Court collegium. He is the administrative head of the apex court.
Numerous matters concerning the Court are entrusted only to the CJI. Under the Supreme Court rules, he constitutes the benches of the judges and assigns cases to the benches for hearing. Although the appointment of judges is also an administrative matter, the CJI is not the supreme authority in the collegium system. He needs to carry the collegium members along with him and decide the names of judges by consensus.
It seems to be a difficult task to achieve consensus in a group of the senior-most judges. Only insiders know how these judge-makers arrive at a consensus. After receiving the collegium’s unanimous recommendation, the president, on the advice of the prime minister, can always return such a recommendation once for the collegium’s reconsideration by recording the specific reasons. Thereafter, the collegium may reconsider its recommendation, but if it reiterates such recommendations, the president will have no option but to accept the collegium’s view.
In Supreme Court Advocates-on-Record Association vs Union of India, (2016) 5 SCC 1 at 588, the Supreme Court has said this clearly in these words: “If the Chief Justice of India and others with whom he/she has discussed the matter conclude unanimously that the person ought to be appointed as a judge of a High Court or the Supreme Court despite the antecedents, peculiarities, and angularities, there can be no earthly reason why that collective view should not be accepted. The Chief Justice of India is in a sense the captain of the ship as far as the judiciary is concerned and his/her opinion (obtained collectively and unanimously) should be accepted rather than the opinion of someone who is a passenger (though an important one) in the ship.”
Before giving a green signal to the collegium’s recommendations, the Union ministry of law and justice completes certain administrative formalities like background checks of the recommended persons through the Intelligence Bureau, and this process takes some time. This is a crucial process that provides some scope to the central government to delay/dilute the implementation of the collegium’s decisions. This is an essential formality.
Commenting about this issue, eminent legal philosopher Professor Upendra Baxi states: “To be sure, a national security check on the names finalised by the collegium is the prerogative of the Union of India but this does not furnish any ground for reportedly adding new conditions regarding judicial elevations beyond the NJAC decision itself. The collegium that makes the final choices is best assisted by the national intelligence agencies. However, constitutional good faith requires the appointment process be reasonably expeditious and efficient. In case of elevation of high court chief justices and associate justices such an enquiry would not involve much time as would first-time elevations to the Supreme and high courts. In any case, a national security check cannot be an alibi for much delayed executive and judicial action. Nor can it be it a cover for bringing back some aspects of the NJAC amendment and the Act.” (The Indian Express, August 24, 2016).
Since 2014, we have seen that the central government has delayed several judicial appointments and also segregated some recommendations without taking the collegium into confidence. This practice undermines the authority, primacy and independence of the Supreme Court collegium. Constitutionally, the executive has no power to bypass the collegium in judicial appointments.
Former CJI RM Lodha makes it very clear in these words: “When we send the names of judges, and when it is more than one, the collegium considers many factors. One of which includes who all the collegium feels fit to become CJI in due course of time. So, when the list is prepared, serial numbers of 1,2,3,4 are given to the names recommended to the government. These serial numbers are given to indicate who is to remain senior to whom, who is to become CJI, etc. So, if the government is segregating names, it is tinkering with the list the collegium sent” (The Hindu, April 28, 2018). The segregation of recommendations made by the central government affects the seniority of the judges adversely.
It is apposite to state that the central government has no power to dilute or modify the collegium’s resolutions. However, as mentioned earlier, it can always express its objections about the recommended candidates if it finds something objectionable that goes against the national security or judicial independence but finally, it must honour the collegium’s view. And if it proposes to segregate some names of judges recommended by the collegium, it should always take the latter into confidence.
“The first thing required of the government is to write to the CJI, saying, ‘Look, in the list of two you sent us, we have a problem with this person. So, if you want the other name to go ahead, we can proceed’. This is how the primacy of the collegium is maintained. The government cannot do indirectly what it cannot do directly,” Justice Lodha said about the segregation issue.
Some other jurists also opine that the central government cannot segregate the collegium’s recommendation on its own. “The executive cannot split the recommendation. It is for the Supreme Court to do so”, states former CJI MN Venkatachaliah, (Hindustan Times, June 26, 2014).
The new CJI, NV Ramana, has assumed his office during a difficult time when the judiciary is facing several challenges. The legal fraternity has a lot of expectation from him. As a leader of the collegium, he will also face many challenges. But he will also get some great opportunities to make a visible contribution to the judicial system of the country. Much is expected by way of reforms in the Justice Ramana led collegium system. Some of the recommendations are:
- The new CJI should restore the collegiality in the collegium so that it could become functional. There has been an impasse in the collegium for the last 18 months which is badly damaging the reputation of the Supreme Court. Around six vacancies exist and the collegium should not delay the appointments of judges.
- The collegium members should work with a constructive approach and commitment to the cause of selecting the best legal brains for the constitutional courts. Transparency in the collegium is another issue that needs serious consideration. Sometimes, the collegium’s decisions appear to be opaque and mysterious which gives a wrong message to the society about the top court and its working system. The CJI should address these kinds of issues urgently.
- The trust deficit prevalent among the collegium members has caused irreparable damage to the credibility of the institution of the Supreme Court and collegiums. The CJI should eliminate this deficit to protect the integrity, sanctity and authenticity of the decision-making process of the collegium. The collegium cannot act without developing collegiality.
- There is no harm if the collegium’s problems are reported to the full Supreme Court which could guide it properly. In a constitutionally controlled democracy, no constitutional functionary can exercise powers without accountability. The Supreme Court fixes the responsibility of the executive and the legislature in several cases that come up before it for adjudication. Should not the judges who preach lessons of accountability, constitutional morality, and constitutionalism to others also practise the same principles in their functioning? The new CJI should not miss any opportunity to preserve and protect judicial independence for which the collegium system was devised by the top court.
- The Justice Ramana-led collegium should fill up all vacancies of judges in the Supreme Court and the High Courts by selecting deserving and meritorious judges who can enhance the reputation, dignity, and performance of the judiciary.
Under the leadership of CJI NV Ramana, the collegium will have a great opportunity to appoint around ten judges in the Supreme Court. This will have a far-reaching impact on the functioning of the top court. The CJI and his collegium colleagues need to act with a true spirit of collegiality and commitment to build a consensus for selecting the best judges.
Let me end with these scholastic words of Professor Baxi: “Justices must be seen practicing what they preach to the other holders of public power. It is only when they collectively fail to do so that democracy is truly imperiled.”
—The writer is Advocate, Supreme Court of India