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Judicial Appointments and Presidential Powers

The time has come when the Supreme Court collegium should be replaced by the NJAC comprising the members of the judiciary, the legislature and the executive who can select the best legal brains for judicial appointments. The observations by a former president on this issue are noteworthy 

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By Lokendra Malik

With presidential elections due shortly, it is pertinent to look at the powers and Constitutional obligations of the highest office in the land. The President of India is the constitutional head of the Union government who acts on the aid and advice of the council of ministers headed by the prime minister in the exercise of his/her constitutional powers and functions as per the mandate of Article 74 of the Constitution. The executive power of the Union is vested in the president under Article 53 of the Constitution which is exercised by him through the elected government head the president is bound to act on the aid and advice of the council of ministers. 

However, there are a few rare situations when the president may act at his discretion. Also, the president is always bound to have a council of ministers to aid and advise him/her even if the Lok Sabha gets dissolved. Under the parliamentary system of government, the elected government headed by the prime minister is collectively responsible to the Lok Sabha, the lower House of Parliament which makes/unmakes the government. The prime minister, who is the leader of the government, takes all decisions and informs the Lok Sabha about such decisions. If the Lok Sabha does not approve the decisions made by the prime minister, the latter cannot stay in the power and would have to resign from his office. In other words, the Lok Sabha is the lifeline of the government.

The prime minister does not need the prior approval of the president, except in a few situations, before making policy decisions, but is duty bound to inform the president after taking such decisions in order to fulfil the mandate of Article 78 of the Constitution. On the other hand, the president can also seek any information relating to the affairs of the Union from the prime minister as and when required. This provision makes the president a constitutional guide of the government, not the master. The president is also duty-bound to preserve, protect, and defend the Constitution and the laws as per his/her oath of office.

As the president holds the highest constitutional office in the country, his observations matter a lot. Generally, the president does not make any comment about the functioning of the government, but at times he/she expresses his views about the state of affairs of the government and the people take these views seriously. On formal constitutional platforms such as Parliament, the president consults the government regarding his speech. However, on informal platforms, the president hardly consults the government and makes remarks in his individual capacity. 

In this piece, I am presenting some selected observations made by former President Pranab Mukherjee about judicial appointments.

In his memoirs, titled, “The Presidential Years 2012-2017”, former President Pranab Mukherjee criticizes the collegium system of judicial appointments. The president appoints the judges of the Supreme Court and High Courts on the recommendation of the Supreme Court collegium headed by the chief justice of India. The recommendations of the collegium are binding on the President. However, all such recommendations route through the prime minister. The government does the background check of the judges. The president can, on the advice of the government, ask the collegium to revisit its recommendations, but if the collegium reiterates its view, the president is bound to accept the same. In other words, the Supreme Court collegium headed by the chief justice of India has the primacy in making judicial appoints to the Supreme Court and High Courts.

Criticizing the collegium system, Mukherjee states in his memoirs: “I have serious doubts over the present arrangement, and the judiciary ought to relook into the issue. The country is run by a political system in which members, who sit in Parliament and assemblies, are elected by the people. They represent the collective will of the people, and nobody can ignore this reality. The pre-collegium system had existed for years since 1950, and there had been no major problems that necessitated a change. One argument that has been given in favour of the collegium system is that it can more effectively tackle the issue of a large number of vacancies in the higher judiciary. If that indeed is the case, then the proponents of the collegium system must tell the nation if the collegium has succeeded in that task. 

“Besides, let us not forget that we have had some eminent judges under the old system, before the collegium system came into being…It is possible that the judiciary has come to mistrust the executive or the legislature, and, therefore, does not want them to have decisive powers on the appointment of judges. It does not, in its own words, wish to be caught in a ‘web of indebtedness’ through the NJAC. This mistrust is not good for the healthy ad­ministration of the country and should be avoided. Better communication between the parties concerned can help in dispelling such mistrust.”

Further, Mukherjee states: “Justice J. Chelameswar, former judge of the Supreme Court, had raised doubts over the collegium system. There have been others, even those who opposed the NJAC, who have been critical of the manner in which the collegium has worked in appointing judges. I do not want to comment specifically on any particular judge’s opinion, because eventually, the majority view prevails in a court verdict. There have been several verdicts that have had a major impact on the people and the political system, and these rulings came with a wafer-thin majority. These include the much-discussed Golaknath and the Kesavananda Bharati cases….the dissenting voices in these verdicts could not be ignored because they were in a substantial manner. While the process lays down that the majority voice is supreme, the minority ruling cannot be simply brushed aside because it is also based on material facts, and the arguments put forth by the dissenting voice are used in taking decisions. For instance, Justice Khanna’s minority verdict set the tone for what has come to be understood as the basic structure of the Constitution of India”.

I think the time has come when the Supreme Court collegium should be replaced by the NJAC comprising the members of the judiciary, the legislature, and the executive who can select the best legal brains for judicial appointments. No authority should be allowed to exercise absolute powers in a democracy. The Constitution is the supreme law of the land. There is too much secrecy in the functioning of the collegium. Parliament has a duty to enact a law to replace the collegium in the national interest. All sections of society need representation in judicial appointments. 

Let me conclude this note with these thought-provoking words of Justice Krishna Iyer: “Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own makes the selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails. In a minimal sense, the selection of the judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone”.

—The writer is an advocate in the Supreme Court

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