The Indian Judiciary and the Collegium System — How the Indian judiciary, in an attempt to preserve its independence, went too far.

While we all lament an unchecked legislature and executive, there is something far more dangerous that exists till now — the Unchecked Judiciary & its Collegium System

To know the story about the collegium system in India one must know that’s it not backed by any constitutional provision but rather by Precedents set by The Supreme Court in a case called Supreme Court Advocates-On-Record Association v Union of India AKA the Second Judges Case.

To understand, you need to know these things :

Under Article 124, The President has to appoint the judges of the Supreme Court in consultation with the Chief Justice of India.

Under Article 217 & Article 222 respectively, The President has the power to appoint and transfer the judges of a High Court in consultation with the Chief Justice of the High Court.

Article 224, gives the President the power to appoint additional judges for a period of two years in case any High Court is overburdened with cases.

So to begin with how the collegium system came about, we must look at the history preceding the cases. It was a time of political turmoil in the 1970s when the Congress was attempting to impose executive & legislative supremacy and passed constitutional amendments to override Court judgments and prevent any check by the judiciary on the executive’s actions. The govt. also started favoring the appointment of judges who ruled in their favor.

Another tool that the govt. used was to appoint additional judges (even though there would be vacancies for permanent positions) in High Courts and leverage their positions through this tool. If anyone wouldn’t toe the line, he would get transferred. This went on even during the emergency when as many as 57 judges were transferred.

Though the Congress govt. was thwarted after the emergency it came back in power.

In 1981, Law Minister P.Shivshankar issued a circular to the governor of Punjab and the chief ministers of all states (excluding the North Eastern states) requesting them to do a few things :

1. Obtain the consent of additional judges in high courts to be appointed in permanent positions.

2. The consent of judges, who would be offered judgeship in their high court, to be appointed initially in a high court other than their state high court.

This created an uproar as it was another attempt to bring the judiciary under greater political control. As a result, eight writ petitions were filed and the matter was heard in the case of S.P. Gupta v Union of India AKA The First Judges case.

The Government argued that the petitioners had no locus standi in the case. But the Supreme Court retorted by saying that “The cause of Justice can never be thwarted by procedural technicalities”.

The First Judges case, while acknowledging the concept of judicial independence, preserved that the President should have the last say in the matter of appointment of judges whereas the Chief Justice would have no veto rights.

While the First Judges Case did not endow any veto power to the judiciary it did question the Government on its opaque procedures for transfer and appointment of Judges and asked for more transparency on the principle of “Right to Know” and also set the ground for the concept of PIL (that locus standi isn’t necessary for matters of public interest).

In the Late 1980s, while public opinion was mobilized against the Judgment of the First Judges case, the Supreme Court Advocates-on-Record filed a petition in the Supreme Court asking for Vacancies in the Supreme Court and various high court positions to be filled.

While hearing the petition, the SC acknowledged that the Judgment in the First Judges case needed some reconsideration and directed the matter to a nine-judge bench.

The Majority decision in this case I.e. the Supreme Court Advocates-on-Record v Union of India (AKA The Second Judges Case) ruled that the opinion of the Chief Justice, during the appointment of judges would prevail, in contrast to the First Judges case where the President’s opinion prevailed.

However to decentralize the power of the Chief Justice, the Supreme Court said that the Chief Justice must also consult two other senior most judges of the Supreme Court and High court.

The two judges are now what is called as the collegium of the Supreme Court (or High court as the case may be).

And this birthed the collegium system in India. The judgment while advocating for a consultative, integrative and participative procedure, did the opposite and left an unchecked judiciary.

As a result, while there are mechanisms to keep the other two arms of the government in check, there Remains limited recourse to check the judiciary.

The judges, even though can be impeached by the parliament, is a cumbersome process as it requires a two-thirds majority in both houses of the parliament.

The judgment is till today being criticized as endowing too much power upon on the judiciary. The criticism comes from judges who ruled on the Judge’s cases and even from judges who have been part of or close to the collegium bodies of courts. The collegium is bashed on the grounds of lacking transparency and favoring nepotism and also abetting corruption.

Many academicians have remarked how the judiciary by its very nature is counter-majoritarian and hence a judiciary that is so opaque poses devastating problems for the functioning of a democracy and the balance of power between the three pillars of a democracy.

Though the Bill for the creation of National Judicial Appointment Committee was passed in 2015 by both houses, it was struck down by the Supreme Court as being unconstitutional. Any court having power to strike down entire acts is an abomination for the functioning of a democratically elected legislature.

(Note : This is a summary of an extract from Zia Mody’s “Top ten judgments that changed India”.)

Bonus : The third Judges case (which was actually an opinion given by the Supreme Court when sought by the President) went on to add that the collegium should consist of 4 judges rather than 2 judges.

Whiten by /u/promiscuous_bhisma for Librandu.