The Indian Dilemma of Choosing Between the ‘Collegium System’ and the ‘NJAC’: A Matter of Judicial Accountability and Independence
Authpred By - Jaspreet Singh
The sphere of Judiciary has remained a sacrosanct and unimpeachable subject in the Indian Context. Provisions such as contempt of court have always acted as bulwark against any extreme criticism of the working of the Courts in India. The constitutional provisions for the appointment of judges are academic and are less procedural in nature. The matter of judicial appointments in the Supreme Court and the High Courts through the mechanism of Collegium system and its impact on the ‘judicial accountability’ has been analyzed in this paper. Similarly, the constitution of the National Judicial Commission for the appointment of judges and its impact on the ‘judicial independence’ is another aspect to explore in the context of principle of separation of powers. To what extent the judiciary be kept independent in the process of recommendation of names for the appointments to the Supreme Court and the High Courts and when does such judicial independence come in the way of judicial accountability have been a subject of great importance of research and hence, has been vividly and comprehensively discussed. The stance of Indian Judiciary on the choice between the collegium system and the Judicial Appointment Commission has come out as a fluctuating and a changing one which has undergone a continuous change with the changing decades especially after 1980s.
Judiciary is the main organ of the government in a functional democracy and the significance of the proactive role of the judiciary enhances as the importance of the constitutional principles increases. India, in such a context, becomes a matter of great curiosity as it is the largest democracy in the world despite the fact that it got its own constitution in the form of fragments borrowed from the constitutions of other nations such as that of the United States of America from which India has adopted the principles of Judicial Review, Independence of the judiciary, Removal of Supreme Court and High Court Judges and, Britain which has guided India in the incorporation of the principles of Parliamentary form of Government, Legislative Procedure and the Rule of Law. Judiciary’s role in a democracy is that of a watchman on the liberties and protection of the constitution from any kind of violation by either the rule making body of the country or any citizen residing in it. A judiciary can set the State on the wheels of constructive growth when its judges drive the vehicle of the constitution, hold the steering in their own hands and move in the direction of law and justice; the vehicle being fueled by the winds of independence. And this can be made possible only when the judges are appointed according to a just procedure without any bias and influence. In India, there is a growing national debate on the mechanism of appointments of judges of the Supreme Court and the High Courts. The debate in the nation aims at justifying either the current practice of collegium system or the National Judicial Appointment Commission.
Constitution on the Appointment and
Transfer of Judges
The establishment and the constitution of the Supreme Court has been given under Article 124 of the constitution. Article 124(2) of the Indian constitution provides for the appointment of the Supreme Court judges by the President of India. The appointment should be made after consulting those judges of the Supreme Court and the High Courts of the states whom the President deems necessary for consultation. Clause 1 of Article 124 provides for the establishment of the office of the Chief Justice of India. For the appointment of any judge of the Supreme Court other than the Chief Justice, the Chief Justice of India has to be consulted and the President is obligatory to seek to opinion of the Chief Justice in the matter of appointment of judges.
Similarly, the matter of appointment of the judges of the High Court has been provided under Article 217 of the Constitution. Under this Article, the President appoints the judges (excluding the Chief Justice of the High Court) of the High Courts by way of a warrant after consulting the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. Sub-clause (b) and (c) of Article 217 provide for the manner of removal and the conditions for the vacation of the office of the judges of the High Court. Under Article 222, the President after consulting the CJI can transfer one High Court judge to another High Court.
Article 224 provide for the appointment of additional and acting judges. Under this article, certain conditions are mentioned under which the appointment of an additional judge may be made by the President. These conditions include increase in the workload of High court and arrears of work for a temporary period of time. If any judge other than the Chief Justice is absent or by some other reason not able to perform the duties of his office or under some situation, is appointed to act as Chief Justice for a temporary period of time, the President may appoint a person who is duly qualified to discharge the duties of a judge as a judge of that Court till the time a permanent judge takes the office and resumes to discharge his duties.
The president while appointing the judges of the Supreme Court and the High Court exercises his judicial powers and not executive powers. It has to be noted that while appointing the Comptroller and Auditor General of India, Chief Election Commissioner, chairman and members of the UPSC and other officials, the President exercises his executive powers. Article 60 of the Constitution lays down the subject matter of the oath that the President has to take before entering into his office, in the presence of the Chief Justice of India or in his absence, the senior most judge of the Supreme Court available at that time. Therefore, the President has to affirm that he will endeavor his best to ‘preserve, protect and defend the Constitution and the law’.
Hence, the President and the Chief Justice of India play a significant role in the appointment of the judges. However, the concrete mechanism for the appointment and transfer of the judges with a detailed description has not been given in the Indian Constitution.
Primacy of the Executive in Judicial Appointments and Transfers (First Judges Case)
In 1981, the first case relating to the issue of appointment of judges came up before the Supreme Court. Various writ petitions were filed before the Bombay High Court and Delhi High Court challenging the circular letter by the central government providing for the appointment of new additional judges. Under Article 139 of the Constitution, these petitions were transferred to the Supreme Court by the High Courts. The procedure for the appointment of the judges was also considered by the Court. A recommendation was made by Justice Bhagwati that there should be a collegium that would be responsible for recommending the names of judges to the President for the appointment in the Supreme Court and High Court. And the collegium must consist of those people who are free from any bias and should recommend the names of those persons only who will contribute substantially to the role of judiciary in a constructive way. Justice Bhagwati also emphasized that all the three functionaries must be given equal importance in the conclusion process. However, the judgment of the Court came in the ratio of 5:2. The other two judges remarked that the counsel of the Chief Justice of India should be regarded as supreme and superior in the procedure of appointments of judges to any other counsel. The Court also explained the meaning of the term ‘consultation.’ The Court held that ‘the President must consult the Chief Justice of India before transferring the Judge. That is in the nature of a condition precedent to the actual transfer of the Judge. Consultation within the meaning of Article 222(1) therefore, means full and effective, not formal or unproductive consultation.’ The Court also held that the central government’s decision to not disclose the correspondence was contrary to the public interest and hence, unjustified. The judgement declared that ‘the “primacy” of the CJI’s recommendation on judicial appointments and transfers can be refused for “cogent reasons.” The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.’ The primacy was given to the Central Government which was made not to be bound by the opinion of other constitutional functionaries. It could also override the opinion of the other functionaries.
Shift of Primacy from the Executive to the Chief Justice of India in Judicial Appointments and Transfers (Second Judges Case)
In Supreme Court Advocates-on Record Association vs Union of India, a nine-judge bench of the Supreme Court overruled the decision given the First Judges case. In this case, two questions were examined by the Court. One pertained to the ‘position of the Chief Justice of India with reference to primacy and the another dealt with the justiciability of fixation of Judge strength.’ However, the Court said that the question of primacy will arise only when all the functionaries cannot agree to one conclusion. The Court held that the primacy must lie in the ‘final opinion of the Chief Justice of India, unless the executive has some reasons which are ‘disclosed to the Chief Justice of India’. The view that the transfer of the judges is sometimes punitive is nature was also discarded and the Court held any transfer which is made after the recommendation of the CJI not punitive or erosive on the independence of judiciary and held such a transfer to be in public interest. The meaning of the term ‘President’ was also interpreted by the Court for the purpose of appointment of judges. It was laid down that the ‘expression ‘president’ in Articles 124(2), 217(1) and 222 means the President acting on the aid and advice of the Council of Ministers in accordance with Article 74(1); and the advice given by the Council of Ministers had to be in accordance with the concept of the primacy of the Chief Justice of India’. For the purpose of Articles 124(2) and 217(1), no appointment can be made by the President unless it is in compliance with the opinion of the CJI. The judge who is to be transferred is not required to consent the transfer. Under Article 217(1), the process of appointment is to begin with the Chief Justice of the High Court recommending the name of the judges. “Selection by merit” rule was laid down for the appointment of the Chief Justice of India. ‘Seniority Rule’ was made not applicable for such an appointment. However, while elevating High Court judges to the Supreme Court, inter-se seniority among the judges has to be considered. The Supreme Court therefore introduced the Collegium System, however, the institutional opinion of the CJI formed in consultation with the two senior-most judges must not be confused with his individual opinion as only the former will prevail. In case of High Court appointments, the Chief Justice of the High Court must take the views of at least two senior-most Judges of the High Court.
Third Judges Case and the Strengthening
of Collegium System
In the Special Reference case of 1998, popularly known as the ‘Third Judges Case’, the then President of India, K. R. Narayanan, exercised the power conferred upon him under Article 143 of the Constitution to refer to the Supreme Court for its opinion on questions of law which have such public importance that it is practical and advantageous to obtain such opinion. The questions posed by the President in this case revolved around the consultation between the Chief Justice of India and other judges in the matter of appointment of the Judges of the Supreme Court and the High court and the transfer of the High Court Judges. Another aspect of the reference from the President sought to know whether there is any scope for judicial review of the transfer of judges. It was also queried whether the seniority is relevant in making appointments to the Supreme Court.
The court suggested that the collegium of two senior most Judges should be enlarged and the size of the collegium should be increased for making recommendation for the appointment. It was further laid down that the collegium should consist of the Chief Justice of India along with four senior-most puisne Judges of the Supreme Court. The scope for any bias was considered and it was laid down that the collegium should not include that senior most Judge of the Supreme Court who has been elevated from the same High Court as the Judge to be recommended unless he is a part of the collegium by the reason that he is one of the four senior-most puisne Judges.
National Commission to Review the Working of Constitution (NCRWC) and its recommendation for the constitution of National Judicial Commission
In the year 2000, the Government of India set up a National Commission to Review the Working of Constitution (NCRWC) by a resolution. The Commission comprised of eleven members inclusive of the former Chief Justice of India M. N. Venkatachaliah. The Commission was tasked with the submission of the recommendations with in one year regarding the references that were made by the government. The commission was to look into the working of the Constitution.
The major job before to commission was to analyze the existing provisions of the constitution since its adoption and observe whether the earlier existing provisions are proficient and compatible with the new needs for the efficient governance and social and economic development of the nation. In case, the commission felt the need for bringing in the changes in the constitution or any related aspect, it was to recommend the same without any interference with the basic structure of the Constitution.
The function of the Commission was, however, limited to advisory in nature. The Parliament had the prerogative to either or not proceed in the direction of the recommendations made by the Commission.
The commission divided the whole review of the Constitution into different aspects for the examination which included the institutions of the democracy and the ways to strengthen them, working and accountability of the three organs of the Government – the Legislature, the Executive and the Judiciary, the reforms in the election process, the relations between the Union and the States, the system of administration, decentralization and increasing the horizon of the fundamental rights.
Over all 249 recommendations were made by the commission. 58 out of these recommendations were related to making amendments to the Constitution. One of the major recommendations made in this respect was the suggestion to set up a National Judicial Commission for the appointment of the Supreme Court Judges. The composition of the Commission was also suggested in the following manner –
1. The Chief Justice of India (also act as the Chairman of the Commission)
2. Two senior most Judges of the Supreme Court
3. The Union law Minister
4. One person who shall be nominated by the President
Along with the setting up of the National Judicial Commission, various other changes were recommended by the Commission such as increasing the retirement age of the judges to 65 and 68 for the High Courts and the Supreme Court respectively. The constitution of the National Judicial Council and state Judicial Councils was also recommended with the function of preparing budgets.
National Judicial Appointments Commission
In the Lok Sabha, the bill was introduced on 11th August, 2014 by Ravi Shankar Prasad, the then Union Law and Justice Minister of India. The bill was introduced as a conjunction with the 99th Constitution Amendment Act, 2014 which envisages through itself the establishment of the National Judicial Appointments Commission. The bill contains the procedure to be followed by the Commission while recommending the names of the persons for the office of the Chief Justice of India, the other judges of the Supreme Court and judges of the High Court as well as the Chief Justice of the High Courts.
Composition of the NJAC – The National Commission for the appointment of the judges under the NJAC Act 2014 would comprise of six members – the Chief Justice of India, two senior-most Judges of the Supreme Court, the Union Law Minister in charge and two eminent persons nominated by the President.
Procedure for the appointment of the Judges to the Supreme Court - The central government has to make a reference to the NJAC in case any vacancy arises in the Supreme Court or the High Courts. In case the vacancy is caused by the completion of tenure of a judge, the central government has to refer to the NJAC six months before such anticipated vacancy arises. For the vacancies caused due to the resignation or death of a judge, a reference in context of such vacancy must be made, within thirty days of such episode, to the Commission.
For the appointment of the Chief Justice of India, name of the senior most Judge of the Supreme Court shall be recommended by the NJAC if he is considered suitable and fit to be the appointee. The appointment of the other Supreme Court Judges shall be done after NJAC recommends the names of the persons on the basis of their ability, merit and any other criteria mentioned in the regulations. However, the NJAC cannot recommend the names of any appointee provided that two or more members do not comply to agree to the name selected for the recommendation.
Procedure for the appointment of High Court Judges - On the basis of seniority along with other factors such as merit, ability and other specified criteria in the regulations, the NJAC has to recommend the name of a High Court Judge for the office of the Chief Justice of that High Court. Other than the Chief Justice, the Judges of the High Courts are appointed in a complex manner. Firstly, the Chief Justice of the concerned High Court nominates those persons who he considers fit to be appointed as judges. Simultaneously, the NJAC also sends its nominations to the Chief Justice of the concerned High Court and seeks his opinion. The names that the Chief Justice himself nominates and the names sent to him by the NJAC are necessarily consulted by two senior-most Judges of that High Court. Finally, the NJAC takes the opinion of the Governor and the Chief Minister of the concerned state before making final recommendations. As was in in the case of the Supreme Court appointments, the NJAC cannot recommend the names of those persons who are not agreed by two or more members of the commission.
Transfer of the High Court Judges - The procedure for the transfer of the Judges and the Chief Justices of the High Courts is to be specified in the regulations and the recommendations are to be made by the NJAC.
Reconsideration of the recommendations made by the NJAC - The President has been conferred with the power to ask the NJAC for the reconsideration of the recommended names for the appointments. However, after reconsidering the recommended names, if the NJAC unanimously sends the same names for the appointment again, the President has to make the appointment in accordance with such recommendations.
Constitutional validity of the NJAC Act of 2014
In Supreme Court Advocates on Record Association v. Union of India, the constitutional validity of the 99th Constitutional Amendment Act and therefore, the National Judicial Appointment Commission Act of 2014 was challenged as the act amended Articles 124(2), Article 127 and 128 of the Constitution and inserted Articles 124A, 124B and 124C. After the amendment, the President was not required to consult the judges of the Supreme Court and the High Court. The Court held the NJAC Act ultra vires the Constitution of India with a majority of 4:1 on the ground that the basic structure of the Constitution which contains the principle of separation of powers is violated. The Collegium system for the appointment of judges was retained.
The degradation of values in the judiciary is more dangerous than in any of the organ of the government as the Judiciary has to act as the guardian of the Constitution and as the interpreter of laws. The process of judicial appointments in this respect becomes a sensitive mechanism. The collegium system is opaque as it lacks the element of transparency which assigns the attribute of responsibility and accountability to the Indian judiciary. Therefore, it is certain that the faith of the citizens on the judiciary suffers a big blow and is reduced to a point where the actions of the Courts are viewed with suspicion and a question mark is placed on the veracity of the process of judicial appointments and then, judicial decisions. And there exists no positive justification for the opaque process of judicial appointments through the collegium system. Even if the independence of judiciary is taken as a major point to substantiate and support the disclosure of the details of the proceedings and discussions of the collegium, it does not outweigh or even hold candle to the view that the judicial appointments need to be free from any shade of doubt in view of the fact that the element of judiciary is meant to not only protect the rights of the people but also neutralize any action of the government contrary to the scheme of the Constitution. And this purpose cannot be achieved in the absence of transparency in the judicial appointments.
The emergence of the idea of collegium system is rooted in the judgements of the Supreme Court. Such origin is questionable in itself as it serves the interest of the judiciary only. In other words, the Indian judiciary has developed a system ‘for itself’ through ‘itself’. And hence, the violation of the principles of natural justice is invoked.
For an institution to be accountable, it must be checked by another power or institution in compliance with the principle of checks and balances. In the light of such a background, the collegium system fails. The collegium system consisting only of the top court’s senior judges is bereft of any member from the executive or the BAR. Therefore, the Indian judiciary remains unchecked in its working.
A scope for nepotism in the most important organ of the Government is created while the appointments are made. Moreover, the discussions of the collegium aren’t made public, thus, the secrecy hinders transparency and the concept of judicial accountability is shattered. The Courts are also unwilling to widen the scope of information under the RTI.
NJAC endangers ‘Judicial Independence’
In the Indian constitution, Articles 124-147 and Articles 214-231 deal with the matter of appointment of judges to the Supreme Court and the High Courts. Although the constitution mentions the element of independence of judiciary, it does not clearly explain the extent, scope and aspects of judiciary’s independence. In R.C. Poudyal v. Union of India, it was remarked that ‘in the interpretation of a constitutional document words are but the framework of concepts and concepts may change more than words themselves. The significance of change of concept themselves is vital solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth to safeguard the 'will' of the people - enshrined in the Constitution - it is necessary to keep the Judiciary truly distinct from both the Legislature and Executive.’
The National Judicial Appointment Commission has a questionable composition with respect to the concept of independence of judiciary. The inclusion of the Union law minister is the direct interference of the executive organ in the appointment of the judges who ought to work in the absence of any kind of influence from any other organ of the government or any external entity. And the presence and involvement of one of the highest members of the political executive in the functioning of the commission with an object of the appointment of judges is a clear vitiation of the principle of separation of powers. under such a scenario the judiciary and its judges will be subject to the undue pressure from the executive and political wing, one way or the other.
The independence of judiciary in a democracy is valued most and hence, should be protected the most. The three out of six members of the NJAC under the NJAC, Act 2014 are the Union Law Minister and two other persons nominated by the President. Hence, out of six members of the commission, three are judges including the Chief Justice of India and the other three are either the part of the political executive or those nominated by the President. Hence, in case of non-agreement for a particular name for the recommendation between the three Judiciary members and the other three non-judiciary members, the situation makes conundrum of itself. There can, then, be no consensus and the NJAC is then subject to disintegration of views. And the tussle between the executive and the judiciary will enter in the discussions of the NJAC.
The subjectivity and the inconsistency in the working of the collegium system draw attention to the need to readdress the process of judicial appointments. The NJAC Act should be amended keeping in mind the retention of independence of judiciary in its decisions and should be re-introduced with the reformed version.
The Supreme Court should document a set procedure with binding force which should be followed in the process of appointments and records of all the discussions and meeting should be made public in contemplation of ensuring transparency and concrete process based on rules. ‘The behavior and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary’In India, judicial accountability should be laid down on the lines of American model of judicial accountability.
In view of the fact that the general principles of judicial independence and the accountability of judiciary are regarded as essentially and deeply opposed to one another, the real challenge is to grant as much judicial independence as is required to adjudicate the cases in an impartial and neutral conduct. The task at hand for India is to pave the way for such a mechanism of judicial appointments that will maintain the equilibrium between the judicial accountability and independence of judiciary.
 Article 60 in the Constitution of India 1949
 S.P. Gupta vs President of India and Ors AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365
 AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365
 RAJAGOPAL, K. (2014, June 25). The validity of the collegium system. The Hindu. Retrieved from https://www.thehindu.com/news/national/the-validity-of-the-collegium-system/article6148870.ece
 Writ Petition (civil) 1303 of 1987
 Writ Petition (civil) 1303 of 1987
 SUMMARY OF RECOMMENDATIONS CONTENTS. (n.d.). Retrieved from https://legalaffairs.gov.in/sites/default/files/chapter%2011.pdf
 (2015) AIR 2015 SC 5457
 AIR 1993 SC 1804
 Restatement of Values of Judicial Life, 1997