The author in this post discusses the process given in the Constitution for the appointment of judges & the origin of collegium system. The author also gives a comparison of the existing collegium system with the intention of Constitution makers.
‘Power tends to corrupt; absolute power corrupts absolutely'
The above statement made by Lord Acton forms the Genesis of the concept of Separation of Power. Separation of power is very necessary to avoid arbitrariness. Since the judiciary acts as the guardian of the Constitution and arbiter of disputes so it is very necessary to keep it independent and impartial. The success of the judiciary depends upon the independence of judges. The appointment of judges is an important element of the judiciary. Collegium system is followed in India for the purpose of appointing judges to High courts and Supreme Court. The Supreme Court has been assigned the power to interpret the laws which give the law a dynamic character since sometimes the same law is interpreted differently according to the need of the time. But what will happen if the judiciary refuses to give any new interpretation to any particular law for its own benefit? Collegium is the result of one such interpretation which is needed to be changed now.
There is no doubt that the independence of the judiciary and the appointment of judges is very closely related. The framers of the Indian Constitution, while drafting it, understood the necessity to have an independent judiciary. India’s Supreme Court has long sought to protect itself, mostly through an insulated appointment system, from political pressures. Under the scheme of the Constitution, the final interpreter of the law is the court, not the legislature or the executive. Judicial independence is, therefore, central to democracy because it is the judiciary which helps the realization of the Rule of Law and protection of human rights. But the concept of independence is a complex one that subsumes in its concepts like impartiality, accountability, efficiency, and respect for other institutions of governance.
Article 124(2): Clause (2) of Article 124 says that “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 of 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 sixty-five 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.”
The whole controversy lies around the word ‘consultation’ used in Article 124(2) of the Indian constitution. Since Judiciary is responsible for the interpretation of laws so it interpreted the word ‘consultation’ several times in different cases with different meanings. One such interpretation in the Second Judges case gave birth to the collegium system.
Kesavananda Bharti Case: The genesis of the Judges cases begins in 1973 when Supreme Court established the “Basic Structure Doctrine” which established the concept that the Constitution has a basic structure of principles and values that cannot be altered by an Act of legislature or executive.
First judges Case: Court declared that the “primacy” of the CJI’s recommendation on judicial appointments and transfers can be refused for “cogent reasons”. It was held that consultation does not mean concurrence and it only implies an exchange of views. The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
Second Judges Case: Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence. The advice tendered by the CJI is binding on the President in the matters of appointment of judges. But, the Chief Justice would tender his advice on the matters after consulting two of his senior-most colleagues. However, confusion prevails as the CJI start taking unilateral decisions without consulting two colleagues. The ruling reduced the President to only an approver.
Third Judges Case: The court opined that the consultation process to be adopted by the CJI requires ‘consultation of plurality judges’. The sole opinion of the CJI does not constitute the consultation process. He should consult a collegium of four senior-most judges of the Supreme Court. The court held that the recommendation made by the CJI without complying with the norms and requirements of the consultation process is not binding on the government.
Article 124(2) speaks of ‘consultation’, whether it be with the Chief Justice of India, Judges of the Supreme Court or with the Judges of the High Court. The expression is not “concurrence”. The Constituent Assembly debates show that when it was suggested by some of the members that the expression should be ‘concurrence’ and not ‘consultation’, it was not agreed too. Similarly, the suggestion to provide for the approval of Parliament or its upper House, probably inspired by the U.S. Constitution was also not agreed by Dr. Ambedkar.
“With regard to the question of concurrence of Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on impartiality of Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which the common people have and I think to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the government of the day. Therefore this is a dangerous proposition.” - Dr. B. R. Ambedkar
Although the Judiciary is entitled to interpret the law intention of legislators are always kept in mind while interpreting the law and so no law can be given the meaning beyond the intention of legislators. Interpretation of the word ‘consultation’ to ‘concurrence’ in the Second Judges case is exactly opposite to what the framers of the constitution really intended. However in 1998 when collegium was introduced was up to some extent in accordance with the intention of constitution framers because concurrence in plurality did not provide any veto to CJI. But with the passage of time collegium turned into a tool of judicial autonomy. The members of the Collegium exemplify the cabal like behind-the-door dealings of the judicial branch which lacks accountability and public scrutiny. The lack of transparency has ignited fears of nepotism and elevation of judges based on personal relationships and past favors instead of merit or seniority.
 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.  S.P. Gupta v. Union of India, AIR 1982 SC 149.  Supreme Court Advocates on Record Association v. Union of India, AIR 1993 SC 268.  In Re Special Reference Case AIR 1999 SC 1.  Dr. B.R. Ambedkar, Replying to the debate on the draft provisions of the Constitution of the Supreme Court, (24-05-1949), Constituent Assembly Debates, Vol. VIII, 258.
University of Lucknow
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