SC revives collegium, kills govt’s NJAC
The collegium system of appointing high court and Supreme Court (SC) judges today had a phoenix-like revival as the SC struck down the 99th Constitution amendment and the National Judicial Appointments Commission (NJAC) Act.
The amendment and the NJAC Act were “unconstitutional and void” and as a result the collegium system continued “to be operative,” a five-member Constitution Bench headed by Justice JS Khehar said in a five-point common order. The other members of the Bench are Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel.
The Bench also acknowledged that all was not well with the 22-year-old collegium system and offered to take “appropriate measures” to improve its functioning and posted the hearing for the purpose for November 3.
All five judges, however, delivered separate judgments running into 1,030 pages. Justice Chelameswar disagreed with the four other judges’ ruling that the amendment and the Act would affect the independence of the judiciary, which was a basic structure of the Constitution, and, as such, the 22-year-old collegium system should not be replaced with NJAC.
Justice Chelameswar upheld the 99th amendment after faulting the collegium system on several counts. He said he was not going into the NJAC’s validity as it would be only of academic interest in view of the majority view.
Justice Kurian was also critical of the collegium, but went along with the 4-1 majority ruling.
Defending NJAC, the Centre had contended before the Bench that the “collegium is dead, gone and buried” following the notification on NJAC and that “what is dead can’t be revived” by quashing the two legislations. Parliament would have to step in again for putting in a fresh system for appointing HC and SC judges, Attorney General Mukul Rohatgi had pleaded.
In the majority view, the SC rejected this view and resurrected the collegium from the proverbial ashes. The common order clearly stated: The system of appointment of judges to the SC, and chief justices and judges to the HCs; and transfer of CJs and judges of HCs from one HC to another, as existing prior to the Constitution (99th Amendment) Act 2014 (called the collegiums system), is declared to be operative.
NJAC was supposed to have six members headed by the Chief Justice of India. The other members would have been two senior most SC judges, Union Law Minister and two eminent persons nominated by a troika of the CJI, Prime Minister and the Leader of Opposition in the Lok Sabha.
Despite the government notifying the NJAC Act on April 13, the commission never became functional following CJI HL Dattu’s refusal to be part of it till the PILs against the NJAC were disposed of by the SC. The SC Advocates-on-Record Association is the lead petitioner.
Former judges stress need for transparency
Supreme Court’s refusal to rewrite history, by declining to replace the decades old collegium system of judges appointing judges, has apparently gone down well with former Supreme Court and high court judges.
A substantial number of former judges, The Tribune spoke to, insist it’s too early to comment on the Supreme Court verdict. But, they are firm that the verdict will prevent corrosion of judiciary; and the collegium system, indeed, needs to be made more transparent, as ruled by the apex court Bench.
Welcoming the judgment, Supreme Court’s former Judge Justice Kuldip Singh says the verdict will go a long way in bringing about greater transparency and accountability in the system, evident from the fact that the Bench fixed a date in November for receiving suggestions on improving the system, from the Bar, government, petitioners etc.
“It’s foolproof, if it is transparent and accountable,” says Justice Kuldip Singh. “There is no alternative. You see, the judges know who all are good and fit for appointment as sub-judges, high court judges, and even Supreme Court judges. The judges are the best selectors”.
Welcoming the verdict, former Chief Justice of the Allahabad High Court Justice SS Sodhi says the National Judicial Appointments Commission, as proposed by the government, had inherent in it the potential of political considerations playing a role in the appointment of Judges. “This judgment, therefore, is to be welcomed to preserve the independence of judiciary.”
Describing it as apt and correct, Supreme Court’s former Judge Justice Ashok Bhan says greater transparency in the system is always appreciable. A collegium member for three years, Justice Bhan says the state has its say at all stages of appointment even under the collegium system.
Recommendations are forwarded to chief ministers and a report from the Intelligence Bureau is also sought before the matter is placed before the collegium. The names travel to the law ministry, the Prime Minister’s Office and the President before the elevation takes place.
The executives’ say in the matter is also evident from the fact that around 80 per cent of the times names are dropped following objections by it, adds Justice Bhan. Not in favour of the NJAC, Justice Bhan says the possibility of a name not finding favour just because the lawyer argued a case against a politician at an earlier point in time could not be ruled out under the new system.
A part of the collegium system in Chandigarh and Mumbai for around four years, Supreme Court’s former Judge Justice HS Bedi says he is not in a position to comment on the judgment without going through it. But says the collegium system was “misused tremendously”. “After all, Judges in the collegium are also human beings,” he says.
Justice Bedi adds the system undeniably needs to be made more transparent; and the basic guiding principle should be the preservation and appreciation of merit. Former Chief Justice of Karnataka and Kerala High Courts Justice NK Sodhi says any institution is as good or bad as the people managing it; and that is true for the collegium system as well. But, obviously, more transparency is always welcome.
Former Chief Justice of the Andhra Pradesh High Court Justice Manmohan Singh Liberhan is also unwilling to comment in detail on the finer aspects of the judgment. But he feels the consequence of the verdict is that the Supreme Court has declared itself as the "second sovereign". “In the name of independence of judiciary, the Supreme Court wants to retain the power,” he adds.
Justice Liberhan also believes the collegium system was not much of a success and transparency in the system of appointment of judges would expose the judiciary to unwarranted and uncalled for criticism. “Otherwise also, judiciary loses its respect, if it’s transparent”.