India is a Democratic Republic. For any democracy to survive, it is essential to have an independent judiciary. The hallmark of an independent judiciary is judges of integrity, judges who are fearless, judges who act without fear or favour, affection or ill-will. Therefore, it is imperative that appointments are made only on merit and those appointed are persons with unimpeachable integrity, high intellect and a reputation for fairness.
Article 124 of the Constitution of India provides that the President shall appoint a judge of the Supreme Court in consultation with the Chief Justice of India and such other judges of the Supreme Court and High Court as deemed fit. In case of High Court judges, the President must consult the CJI, Governor of the State and Chief Justice of the High Court.
In the first two decades after the Constitution was adopted, almost every appointment was initiated by the Chief Justice of the High Court. There was no direct appointment to the Supreme Court. The recommendations made by the Chief Justice were invariably accepted, barring a few exceptional cases.
In 1973, after the decision in Kesavananda Bharati v. State of Kerala, the government superseded three senior-most judges of the Supreme Court - Justice JM Shelat, Justice KS Hegde and Justice AN Grover - who had decided the case against the government. Justice AN Ray, who was junior to all three but decided the case in favour of the government, was appointed as Chief Justice of India.
During the Emergency, Justice HR Khanna voiced his celebrated dissent in the ADM Jabalpur case, holding that even during the Emergency, the right to life and liberty cannot be suspended. He had to pay the cost by being superseded for appointment as Chief Justice of India in 1977. Justice MH Beg, who was junior to him, was appointed as Chief Justice of India.
During the 1970s and early 1980s, many persons who were appointed were not those recommended by the Chief Justice of the High Court, but those suggested by the executive. The President also exercised the power to transfer judges on the recommendation of the government and many judges who were inconvenient to the government were transferred.
During the Emergency, the executive tried to take total control of the judiciary. Many judges who the government perceived to be against their policies were transferred such as Justice Rangarajan of the Delhi High Court, Justice TU Mehta of the Gujarat High Court, Justice DM Chandrashekhar of the Karnataka High Court and Justice DS Tewatia of the Punjab & Haryana High Court. A few judges who were brilliant and absolutely independent but did not toe the line of the powers that be were not confirmed as permanent judges. These include Justice RN Agarwal of the Delhi High Court and Justice UR Lalit of the Bombay High Court. Incidentally, the latter’s son, Justice UU Lalit, rose to be the Chief Justice of India.
The four judges cases shaped the contours of the judicial appointments system over the years. In SP Gupta v. Union of India (1981), also known as the First Judges case, the Court held that the President is not bound to make appointments based on the consultation of the Chief Justice. This judgment gave untrammeled powers to the executive and came under a lot of criticism.
The Second Judges case - in which it was held that the Chief Justice of India must have primacy in the appointment and transfer of judges - gave birth to the Collegium system.
In the Third Judges case, the Court strengthened the primacy of the judiciary in judicial appointments. The Supreme Court held that “consultation” in Articles 124, 217, and 222 of the Constitution means concurrence, not just advice. It is extremely important to note that as per this judgement, the judiciary’s opinion, expressed through the Collegium, has primacy over the executive in judicial appointments and transfers. The executive can ask for reconsideration once, but if the Collegium reiterates its recommendation, the executive is bound to accept it.
Unhappy with the Collegium system, the government in 2014 passed the National Judicial Appointments Commission (NJAC) Act, which required the President to act on the advice of the NJAC instead of the Chief Justice of India. This gave rise to the Fourth Judges case, in which the Court struck down both the NJAC Act and the constitutional amendments as unconstitutional.
The Collegium system has been under fire for a long time. It is argued that India is the only country where judges appoint judges. According to the critics, the Collegium system is opaque and acts like a club and there are no objective guidelines for appointment of judges.
The Commission envisaged under the NJAC Act did not give primacy to the judiciary. The executive was in fact given the power of veto. In my opinion, that was the biggest lacuna in the NJAC. Though I am of the view that the Collegium system is flawed, at the same time, I believe that the judiciary must not only have supremacy but also the final word as far as the appointment and transfer of judges is concerned. This is necessary to maintain the independence of the Judiciary.
However, that does not mean that the government or other stakeholders like the Bar should not be consulted. It would be better to have the nominee of the government sitting in an appointment commission or face-to-face with the members of the Collegium, rather than pulling strings from behind. The version of the Intelligence Bureau (IB) and complaints against the candidate can be considered by such a commission. If any such commission is set up, the majority of the members should be from the judiciary and there should be no veto power with the government. In the commission, there should be representation from the Bar and lay public. Obviously, the representative of the public should only be those people who know about the functioning of the judiciary. However, the setting up of a Judicial Appointment Commission is a hope which may never fructify in the near future.
Given past experience, it would be dangerous if the State has the final word in appointments and transfers of judges. That would seriously compromise the independence of the Judiciary. Therefore, until a better system is evolved, the Collegium system is here to stay whether one likes it or not. The system, however, needs drastic improvement.
In the High Court, as the present system stands, the Collegium consists of the Chief Justice and two other judges. Normally, the Chief Justice is always a judge transferred from some other State. Chief Justices usually have a very short tenure. In some High Courts, even the next two judges are not from the State. They have no knowledge of the potential candidates.
I am of the opinion that to overcome this problem, in High Courts where the strength is less than 5, the entire strength should form the Collegium. Where the strength of the High Court is between 5 to 25, the Collegium should consist of at least 5 judges, of whom at least 3 should be local judges. Where the strength of the High Court is more than 25, the Collegium should consist of 7 senior judges, of whom at least 4 should be local judges. When a High Court is considering a member from a Bench, then at least two judges having the longest tenure in that Bench should be members of the Collegium.
In my experience, Chief Justices and senior judges only handle writ and public litigation, especially in bigger High Courts. They do not interact with the Bar on the criminal, civil or original side. Therefore, while making appointments, senior-most judges from these branches should also be consulted, even if they are not members of the Collegium. The Chief Justice and members of the Collegium should also seek input from senior counsel not interested in becoming judges, and also from recently retired judges.
The meetings of the Collegium must be recorded and the views of all judges and persons consulted included in the minutes. Both the Supreme Court and the High Courts should have a dedicated Collegium secretariats to maintain such minutes and dossiers of all senior judicial officers and Bar members who are potential candidates for judgeship.
The High Court Collegium should simultaneously send its recommendations to the Central and State governments and the Supreme Court of India. In fact, it would be better if the names recommended are also sent to the IB for verification of antecedents so that there is no wastage of time. The State should respond within 15 days, failing which it shall be presumed that the State has nothing to say. The IB should submit its report to the Central government within 30 days. The Central government should forward the report of the IB along with its views to the Supreme Court within 30 days. Thereafter, the Supreme Court should consider the matter within 30 days and send its recommendations to the Central government.
If the Supreme Court disagrees with the High Court or the Central government either on the basis of the inputs of the latter or views of consultee judges, the name should not be rejected outright. Instead, the input should be shared with the Chief Justice of the High Court, who should place it before the High Court Collegium for reconsideration. At present, the system is opaque and the High Court is not informed as to why the names recommended by it are rejected.
In case the Central government has some reservations with regard to any candidate, the Supreme Court should consider the views of the Central government. If it accepts the view, then it can convey the same to the High Court. If it disagrees, the Supreme Court must give reasons for its disagreement. In case the government again reiterates its view, the Supreme Court should take up the matter at the earliest, not later than 15 days. If the Supreme Court reiterates its view, then the same is binding on the Central government and the name must be notified for appointment. The executive cannot be permitted to sit over the matter thereafter.
On many occasions, the Supreme Court does not take up matters chronologically. Depending upon the composition of the Supreme Court Collegium, newer matters are sometimes prioritised. The Supreme Court secretariat should ensure that the Collegium considers names strictly in a chronological order so as to maintain inter-se seniority of the judges of the different High Courts, which becomes every important at a later stage.
The government should also communicate its views clearly at this stage. It should not be permitted to sit indefinitely on files. The Memorandum of Procedure (MoP) should provide that within a fixed number of days, the government must either clear or reject the name. Thereafter, the government should issue the warrant of appointment.
There are two other issues of great importance which, though not directly related to the Collegium system, are extremely important. Many ills presently plaguing the system will be resolved if the retirement age of judges of the Supreme Court and the High Court judges is uniform. In that eventuality, the High Court judges may not even want to come to the Supreme Court. The unholy hold which some members of the Supreme Court Collegium exercise over the senior judges of the High Court will also come to an end. In case the retirement age is increased from 62 to 65, there will be no retirement in the High Court for 3 years and the vacant positions will also improve. The Supreme Court Collegium, while elevating judges from the High Court, can also ensure that those who are more administratively adept are kept as Chief Justices and those who are more intellectually inclined are brought to the Supreme Court.
Lastly, but most importantly, there should be no post-retirement jobs for judges if we are bound to have a totally independent and fair judiciary. The biggest temptation is a post-retirement sinecure, especially one which ensures a bungalow in Lutyens’ Delhi. One cannot expect justice from someone who, on the verge of retirement, throng the corridors of power, seeking post-retirement sinecures from the government.
Justice Deepak Gupta is a former judge of the Supreme Court of India.