Appointment of judges has been made by the collegium system for around two decades now. It involves the appointment and transfer of judges on the recommendation of the Chief Justice of India (CJI) and four of the Supreme Court’s senior-most judges. This system is not laid down by the Constitution, but has rather evolved as a result of the judgement given in the Three Judges Cases on the 28th of October, 1998.
The collegium system has been criticized many times on a number of grounds:
(i) It has created an ‘Imperium in Imperio’, meaning that the collegium system has aided in the formation of an empire within an empire of judges.
(ii) It has earned a reputation for encouraging a ‘give and take’ policy in the legal system by enabling chances of favouritism to creep in.
(iii) It differs from the procedure for appointing judges mentioned under Article 124 of the Constitution: “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and the High Courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years; provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
But the collegium system, as much as it may appear so, is not all bad. It has been considered a well-placed system due to the following factors:
(i) It upholds the principles of separation of powers and facilitates independence of the judiciary – The Legislative and the Executive do not interfere in the process of appointment and transfer of judges.
(ii) It makes the judiciary independent of politics. And outside influences as well.
(iii) It upholds the seniority of the candidates and relies upon the best judgement of the judges.
To curb the collegium system and bring a more democratic system of appointing judges in its place, the National Democratic Alliance government passed the National Judicial Appointments Commission (NJAC) bill. The NJAC was proposed to be a body consisting six members – the CJI, two of SC’s senior-most judges, the union minister of law and justice, two eminent persons (one of whom had to belong to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, other minority groups or women) appointed by the CJI or the Prime Minister or the leader of the opposition in Lok Sabha. The secretary of NJAC was proposed to be with the law ministry.
The NJAC has three members from the judiciary and three members from outside. Moreover, members have a veto power, which means that every one of them can significantly influence the decisions of the NJAC. Once a particular recommendation is vetoed by a minimum of two persons, it cannot be revived. This is precisely the reason why the Supreme Court struck down the NJAC Act and declared the 99th amendment that aimed to overthrow the collegium system as unconstitutional, saying that it would dilute the independence of the judiciary.
Therefore, after analysing the pros and cons of both the systems, it is plainly obvious to the common observer that neither of them are fully equipped to guarantee a transparent and impartial system of appointing and transferring judges. In its place, the government should constitute an independent body dedicated to appointments of the judiciary, much like the Election Commission of India. This body must be empowered to work in a methodical manner of evaluating and selecting eligible nominees. The proposal for the same was made by Prashant Bhushan and the Centre for Public Interest Litigation in their petition. Such a body, in my opinion, would be just the thing we all need to restore our faith in the appointment of the worthiest verdict-givers in the country.