Collegium system decoded

The present endeavor by the Supreme Court bench to improve the collegium system by seeking opinion from the general public and other stakeholders is a misadventure which amounts to an attempt to legislate which is not the task of the judiciary.
The basic challenge against the NJAC Act before the Supreme Court was that it impinges upon the independence of the judiciary which is one of the postulates of the basic structures of the Constitution. The Constitution bench presided by Justice JS Kheher by 4:1 struck down the NJAC Act and the constitutional amendment as ultra vires as it scuttles the independence of the Judiciary which is the basic structure of the Constitution.   The majority judgments are rendered on the premise that it undermines the primacy of the judiciary in appointments of judges to the Constitutional Courts. At the outset of arguments, the Attorney General sought for reference of the case to a larger bench on the ground that the law laid down in Second Judge’s case and in the consequent Third Judge’s case is incorrect and it requires reconsideration. The bench decided to consider the question of reference to a larger bench along with the issue of the constitutional validity of Article 124 A and NJAC Act, thus the arguments were extensively canvassed for the petitioner’s side as well as the respondents. The apex court holds that the law laid down in the Second Judge’s case is correct and the Union of India in the Third Judge’s case did not seek a review or reconsideration of the judgment in the Second Judge’s case. The reason that the Union of India did not press for reconsideration of the Second Judge’s case cannot stop the Parliament from enacting a law. In order to understand the merit of the contention for seeking reference of the case to a larger bench, it requires analysis of the judgment of the Supreme Court in First Judge’s case and the Second Judge’s case. In the First Judges case the issue related to the interpretation of Article 217 which envisages the procedure of elevation of persons to the High Court. The substance of Article 217 declares that the President while appointing a person to the High Court shall consult the Chief Justice of the High Court, the Governor and the Chief Justice of India. The bench presided by seven judges held that the words “Consultation” would mean effective and meaningful consultation. The judges extensively referred to the Constituent Assembly debates (CAD), where Dr BR Ambedkar rejected giving primacy to the view of the Chief Justice of India and choose the mid-path of effective consultation. The Second Judge’s case decided by the bench presided by nine judges involved interpretation of Article 124. The material portion of the said Article for proper understanding is extracted hereunder: ​   (2) Every Judge of the Supreme Court shall be appointed by the President ….. after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose ………………Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted:” The majority opinion of the seven judges held that the primacy should be given to the judiciary in the matter appointment of judges to the constitutional court, however, by interpretation mutated the words, “Consultation with CJI” to mean that consultation with the Chief Justice of India and two senior most judges being the collective opinion would be binding on the President, thus evolved the collegium system. On plain reading of the relevant text of Article 124 (2) and the CAD does not permit the interpretation propounded in the second judge’s case.  The textual law of the constitution insists the consultation by the President such of the judges of the Supreme Court and of the High Court as the President may deem necessary for the purpose. The interpretation given in the Second Judge’s case is penitently incorrect and contrary to the letter and spirit of the Constitution for reasons more than one. The textual law declares that the President can consult any of the judges of the Supreme Court and judges of the High Court. The interpretation given in the Second Judge’s case curtails the discretionary powers of the President from consulting the constitutional functionaries named in Article 124 (2) and Article 217. The President is made bound by the recommendation of the Collegium. Such interpretation of trisecting the role of CJI and investing the role for CJI and two seniormost judges virtually amounts to diluting the constitutional dignity and role of CJI envisaged in Article 124 (2). In fact, Justice MM Punchhi in the Second Judge’s case in his dissenting judgment called the Collegium system as judicial oligarchy and opined that the consultation process shall have to be only with CJI.  The Third Judge’s case expands the numerical strength as CJI plus four seniormost judges. There is no basis in the Constitution nor in the CAD to give any mandatory role for seniormost judges of the Supreme Court in the consultation process, apart from CJI. It is at the discretion of the President to consult any judges of the Supreme Court, including from the senior most judges, however, consulting the CJI is mandatory. The opinion of the CJI was by and large accepted by the President in making appointments under Article 124 except with few exceptions. The executive acted fairly and eminent judges were elevated to the Supreme Court prior to Second Judge’s case, the law propounded in the Second and Third Judge’s case does not seem to trust the CJI and his role in the consultation process is reduced to 1/5 without any basis in the Constitution for such an interpretation. The interpretation that the President is bound by the recommendation of the Collegium and the evolution of the Collegium system is repugnant to the plain reading of the textual law and not even supported by the CAD. It may be interesting to note that why Article 124 (2) enables the President to consult the judges of the High Court for a judge to be elevated to the Supreme Court, be it as it may. The President, in the wider range of the consultation process, is also entitled to consult the judges of the High Court perhaps for the reason that material inputs regarding efficiency and suitability could also be obtained from the said source. The second fallacy in the Second Judge’s case is that the Constitution mandates the President to consult the Chief Justice of India imperatively in the matter of elevation of a judge to the Supreme Court. In the first place, the plain meaning of the words “consultation” cannot by any stretch of imagination to be construed as concurrence. The constitutional debates are the valuable tools for the proper understanding of the words and expressions in the Constitution. The debates disclose that there was also a move to use the expression of “concurrence” instead of “consultation”. The drafting committee headed by Dr BR Ambedkar and the Constituent Assembly ultimately decided that the President has to imperatively consult the Chief Justice of India and not to seek his concurrence. The concept of exclusive primacy of the Judiciary propounded in the Second Judge’s case in the matter of appointments to the constitutional court is without any constitutional basis. The independent of the judiciary is certainly one of the inviolable facets of the basic structure. Article 50 of the Constitution of India declares that State shall take steps to separate the Judiciary from the Executive in the public service of the State. Even after the Constitution came into being in many of the States the officer of the Executive were discharging judicial functions. In that context, the provisions of Article 50 of the Constitution of India shall have to be understood that the Executive should be divested from exercising judicial functions. Neither the Constitution nor the members of the drafting committee nor the Constituent Assembly contemplated any primacy to the Judiciary in the matter of appointments to the constitutional courts. The members of the Constituent Assembly and the drafting committee were all highly erudite and were fully conscious of the purport and intention of every provision of the Constitution. It was never in the contemplation of the drafting committee or the Constituent Assembly that the Judiciary shall enjoy exclusive primacy in the matter of appointments to the constitutional courts; if there was such any intention on the part of the Constituent Assembly definitely a categorical provision would have been made instead of Article 124 (2). To equate the Collegium as the epitome of the Judiciary in the Second Judge’s case is a flawed logic. Therefore, the law laid down in the Second Judge’s case that Judiciary/Collegium shall have primacy in making appointment to the constitutional courts ultra-vires the text of the Constitution in Article 124.     The Collegium system evolved in the Second Judge’s case had its own contextual purpose. There were a large number of vacancies in the High Court which remained unfilled. Therefore, for immediate and timely appointment, a time-frame was prescribed to fill-up the vacancies in the High Courts without any delay. Besides, the court found that the Collegium is the expert body and a best judge to elevate suitable persons to High Courts. Thus it held that it ensures the independence of Judiciary free from Executive interference. The Collegium system worked for over twenty years. The experience has shown that the purpose for which it was evolved has utterly failed. Neither the vacancies were filled up without any delay nor efficient and suitable judges were appointed to handle civil, criminal and tax matters in the High Court for expeditious disposal. The cases of this nature are still pending in the High Courts for over ten to fifteen years or even more. The Collegium system has created a sense of hierarchical order in the higher judiciary and a strong sense of subordination got ingrained in the High Court Collegium consisting the CJ and two seniormost judges that they have to remain obeisant to the Supreme Court Collegium and the state judge in the Supreme Court. All the recommendations made by High Court collegiums were to be in accordance with the wishes of Collegium and the state judge, or else they got rejected. The reason for rejection is not even made known to the High Court collegiums. As a result, the vacancies in the High Court are not filled up and many a time un-suitable persons are elevated to the High Court. Even it slighted the judges of the  Supreme Court  who could reach a position in the Collegium. It is an admitted fact that the Collegium system lacks transparency and objectivity. Although, all decision taken by the Collegium were “unanimous” in writing but actually were cryptic without reasons. The recommendations for appointments, transfers and complaints against judges are not subjected to RTI and judicial review for the reason that the litigated debates would result in erosion of creditability of the decision, and for ensuring free and frank and honest opinion of all constitutional functionaries the esoteric procedure is adopted. In view of the faults and infirmities in the Collegium system, there was a strong opinion to evolve a more transparent and objective system. As a result, the constitutional amendments and NJAC Act came into being. The reason that the Union of India did not oppose the controversial appointments is not a factor to prevent Parliament from making a law when there have been inappropriate compromise between the Collegium and the Executive. The court holds that the memorandum of procedure provides for adequate Executive participation. The said procedure is, however, only by correspondence, it does not seem objectionable if such consultation between the Executive represented by the Law Minister and the Collegium interface with oral dialogue. The presence of eminent persons cannot be doubted as an encroachment on the independence of the Judiciary and it is a misconception that they would always be partisan to misuse the veto. After all, the eminent persons are appointed by the committee consisting of Prime Minister, CJI and Leader of the Opposition. Therefore, any assumption or skepticism may not be correct. The National Commission to review the working commission(NCRWC) headed by Justice Venkatachalaiah along with a team of former judges of the Supreme Court, jurist and eminent persons did suggest the NJAC model with CJI as the chairman and two senior most judges, Law Minister and one eminent person. It cannot be said that the chairman and members of NCRWC had glossed over the concern of independency of the Judiciary while making the suggestion. The present endeavor by the court to improve the Collegium system by seeking opinion from the general public and other stakeholders is a misadventure which amounts attempt to legislate which is not the task of the Judiciary. The courts can only interpret and fill up the gaps but cannot legislate from the bench which essentially is the domain of the Parliament. It was very much necessary on the part of five-judge’s bench to have referred the case to the larger bench without expressing any opinion on the NJAC Act and the Article 124 (A).