Past weeks have seen remark on remark by senior echelons of the Modi 2.0 government that can be interpreted aa nothing short of open provocations. 

Kiren Rijiju, during the ongoing winter session of the Parliament, said in the Rajya Sabha that a constitutional body like Supreme Court should not be hearing “bail applications and frivolous PILs’’ at a time when pendency of cases is so high.

In what came as a quick and befitting counter to Rijiju’s remark, CJI Chandrachud said while hearing a case, “If we do not act in matters of personal liberty and grant relief then what are we doing here? What is SC doing and is it not a breach under Article 136. SupremeCourt exists to hear to the cry of such petitioners. We burn the midnight oil for such cases and see there is more”. His bench was hearing a bail plea filed by a man convicted of stealing electricity and was sentenced to 18 years in prison (9 offences and 2 years punishment for each, not running concurrently) out of which he had served 7 years. The Supreme Court allowed the appeal and the CJI ordered thus,

“Leave granted. facts of the present case provide another instance, a glaring one at that, indicating a justification for SC to exercise its jurisdiction as a protector of fundamental right to life and personal liberty inherent in every citizen. if the court was not to do  so, there would be serious miscarriage of justice for a citizen whose liberty has been abrogated. It is in seemingly small routine matters that issues of moment both in jurisprudential and constitutional terms emerge. Intervention by SC to protect the fundamental rights is based on sound constitutional principles as under 136. right to personal liberty is precious and inalienable liberty and by doing this sc performs a plain constitutional duty. obligation, no more and no less.”

Collegium in the dock again

On pendency of cases, while highlighting that over 5 crore cases are pending in courts across the country, at all levels, Rijiju had also said, “The government has very limited powers to fill vacancies of judges. The government has no power to search for any new name apart from what the (Supreme Court) collegium has recommended. We are giving our full support to reduce pendency of cases. But questions will keep arising on vacancy of judges and appointments till we create a new system for appointments”.

“We only request the chief justices of high courts and the Chief Justice of India (CJI) to expedite the appointments against vacant posts of judges. The recommended names should reflect the diversity of the country in terms of caste, religion and gender. But I feel that somehow things are not happening matching the sentiments of Parliament and the nation,” he added.

Rijiju has overtly criticized the collegium system at public events in the past few months. Speaking at the India Today Conclave on November 5, 2022, he had made some strong remarks against the Collegium system, calling it ‘opaque’ and lacking accountability. He said his government is making the most of the present system till an alternative mechanism is put in place.

On November 25, speaking at Times Now Summit 2022 Rijiju had said, “Never say that the government is sitting on the files, then don’t send the files to the government, you appoint yourself, you run the show…” Describing the Collegium system as “alien” to the Constitution, he had said, “You tell me under which provision the Collegium system has been prescribed.”

On November 28, Justice SK Kaul while hearing a contempt plea filed by the Advocates Association Bengaluru in 2021 (The Advocates’ Association Bengaluru v. Shri Barun Mitra, Secretary)  against the Centre not approving 11 names reiterated by the Supreme Court collegium, seemingly made a reference  to Rijiju’s comments and said, “When someone high enough says that..it should not have happened..Mr AG, I have ignored all press reports, but this has come from somebody high enough also.

On the December 9 hearing of the same case, Justice Kaul said, “Just because there are some sections of the society who express a view against the collegium system, it will not cease to the law of the land.”

Vacations in courts

BJP’s Sushil Modi questioned whether the government will discuss with the judiciary about doing away with winter and summer vacations as high courts have 155 holidays and Supreme Court has 141 holidays through the year. Rijiju said that the government has limited powers to intervene in such matters of the judiciary but long vacations are inconvenient for litigants and that it was his duty to convey the sense of the House to the judiciary.

In this backdrop, CJI Chandrachud declared today that the apex court will not have any vacation benches during the winter break which starts from December 17 and the court will re-open on January 2, 2023.

Such a war of words between the executive and the judiciary is unprecedented. The two most important pillars of the democracy refuse to see eye to eye on various issues, the most pertienent being the appointment of judges which requires the rubber stamp of the government. While the judges posts remain vacant in many courts, the government is washing its hands off saying it has no choice apart from the collegium recommendations, while the collegium has time and again reiterated its recommendations. This constant back and forth between the government and the judiciary has become a mark of an unhealthy democracy.

Related:

Collegium System is Law of the Land, Must Be Followed: Supreme Court to Centre

Is the Centre overreaching itself in returning Collegium recommendations, again?

“It frustrates the whole system”: Supreme Court voices deep anguish against Centre sitting over Collegium recommendations

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Recent statements, sharp and strident from India’s minister for Law and Justice, Kiran Rijiju, on the apparent ‘lack of transparency’ within the Collegium system for appointment of judges to Indian courts, has been met with a dignified response from India’s 50^th Chief Justice, DY Chandrachud.

Speaking to the Indian Express on the charge of the Collegium working being opaque, Justice Chandrachud said there is a “legitimate… public interest in knowing how judges are appointed” but “we also need to preserve the privacy of the people”, members of the Bar or judges of the High Court “who are under consideration”.  This revived controversy has brought back into focus the debate on appointments to higher judiciary.

In this context, this article tracks the adoption of collegium system in judicial appointments.[1]

Before, any further discussion, it is important to note that one of the fundamental features of the Indian Constitution is the Doctrine of Separation of Powers. French Philosopher Montesquieu said that when the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. This separation of powers between different branches of the government makes sure that there is a system of checks and balances.

In the Indian context, the Supreme Court and High Courts not only interpret the Constitution but also protect the fundamental rights of citizens under Article 32 and Article 226 respectively. The Supreme Court also has original jurisdiction over Centre-State disputes, central government, state -other states, the inter-state disputes under Article 131 of the Indian Constitution. To perform the functions it is empowered to, the Supreme Court needs to be free from any political pressure when it is making any decisions. It requires no explanation that appointment of judges be without any political motivation.

Appointment of Judges.

Article 124(2) of the Indian Constitution states as follows:

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 Court 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]—

a. a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4).

And with respect to appointment of the judges to the High Court, Article 217(1) states as follows:

217. Appointment and conditions of the office of a Judge of a High Court

“(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years….”

The appointment of judges used to happen with full discretion of the executive until the case of  the Supreme Court Advocates on Record Association vs. Union of India in 1993.  The first case to deal with on the issue of appointment of judges is SP Gupta vs. Union of India.

SP Gupta vs. Union of India[2], 1982

In this case, a number of petitions involving important constitutional questions regarding the appointment and transfer of judges and the independence of judiciary. One of the issues raised was regarding the validity of Central Government orders on the non-appointment of two judges. To establish this claim, the petitioners sought the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India. The state claimed that the information is privileged under Article 74(2) of the constitution, which states that the courts shall not enquire into the correspondence between the council of ministers and the president. One of the petitioners also argued that the consultation meant concurrence of the Chief Justice in the matters of appointment of judges.

The court was to deal with the question to interpret the word ‘consultation’ which the president is supposed to do with the Chief Justice before appointing a judge. The court stated as follows”

“But, while giving the fullest meaning and effect to consultation’, it must be borne in mind that it is only consultation which is provided by way of fetter upon the power of appointment vested in the Central Govt. and consultation cannot be equated with concurrence. ”  

The court also stated that the court is not required to abide by the advice from the consultations. The court stated

“It would therefore be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court, so long as such decision is based on relevant considerations and is not otherwise mala fide. Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all the three constitutional functionaries, it would have great weight and if an appointment is made by the Central Govt. in defiance of such unanimous opinion, it may become vulnerable to attack on the ground that it is mala fide or leased on irrelevant grounds. But we do not think that ordinarily the Central Government would make an appointment of a Judge in a High Court if all the three constitutional functionaries have expressed an opinion against it. We may, however, make it clear that on a proper interpretation of Clause (2) of Article 124 and Clause (1) of Article 217, it is open, to the Central Government to take its own decision in regard to appointment or non-appointment of a Judge in a High Court or the Supreme Court after taking into account and giving due weight to the opinions expressed by the constitutional, functionaries required to be consulted under these two Articles and the only ground on which such decision can be assailed is that it is mala fide or based on irrelevant considerations.”

This meant that the control of appointment of judges vested with the executive, virtually. This was not to be changed until eleven years later in 1993 case of SC AOR Association vs. Union of India.

Supreme Court Advocates on Record Association vs. Union of India[3]

In this case, the SC overruled the judgement in SP Gupta vs. Union of India and introduced a specific system to appoint judges rather than affirming the executive discretion as was done in the SP Gupta case.

In this case, firstly, the court noted that primacy should be given to the Chief Justice’s opinion when there is a consultation between the President and the CJI. If there is unanimous decision, there is no need to be considering the CJI’s opinion but if there be a conflict, the judgement said, the most weightage should be given to the CJI’s opinion.

The court also stated that – in exceptional cases alone, for stated strong, cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended individual is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. The opinion of the Chief Justice of India has not mere primacy but is determinative in the matter of transfers of High Court Judges/Chief Justices.

The court also stated that the CJI’s opinion be formed after consultation with the senior judges since power cannot be vested with one man. The court stated

“However, it need hardly be stressed that the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion.”

The court said that “inter se, seniority amongst Judges in their High Court and their combined seniority on all India basis” should be “kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court”. It also said that “the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court, according to their seniority” must be duly considered. 

‘Presidential Reference’ for clarification of SC AOR Association vs. Union of India, 1998[4]

In 1998, the President referred to the Supreme Court, using his constitutional powers vested in him under Article 143, for clarification, the SC’s guidelines in the case of SC AOR Association vs. Union of India. The President called for an opinion of the SC on multiple questions on transfer and appointment of judges and the role of CJI in the whole process.

This judgement gave more detailed procedure to the whole appointment process by mandating that the CJI should consult with 4 senior most judges of the Supreme Court while making recommendations to the SC and that the sole individual opinion of the CJI does not constitute consultations within the context of Article 124(2).

The court stated as follows-establishing the collegium system that we see today:

“The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four senior most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior-most puisne Judges of the Supreme Court.”

Another important development that this judgement has brought in is that it mandated that the views of the senior judges who are consulted by the CJI and the views of CJI himself be conveyed to the government in writing and thereafter, the government can appoint them.

An important aspect of this judgement is that it emphasises (does not mandate) a consensus within the collegium system. The court, given that the collegium is consisting of people with different opinions, realised that someday, the CJI might find himself in minority whereas the other senior judges are in majority regarding appointment or non-appointment of a candidate. The court stated as follows on how the collegium should decide on the collective opinion that is to be then sent to the government:

“It is, we think, reasonable to expect that the collegium would make its recommendations based on a consensus. Should that not happen, it must be remembered that no one can be appointed to the Supreme Court unless his appointment is in conformity with the opinion of the Chief Justice of India. The question that remains is: what is the position when the Chief Justice of India is in a minority and the majority of the collegium disfavour the appointment of a particular person? The majority judgment in the second Judges case has said that if “the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommended is unsuitable for stated reason, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible”. This is delicately put, having regard to the high status of the President, and implies that if the majority of the collegium is against the appointment of a particular person, that person shall not be appointed, and we think that this is what must invariably happen. We hasten to add that we cannot easily visualise a contingency of this nature; we have little doubt that if even two of the Judges forming the collegium express strong views, for good reasons, that are adverse to the appointment of a particular person the Chief Justice of India would not press for such appointment.”

After the judgement in 1998, the procedure for appointments was clear. In appointments to both the Supreme Court and High Courts –India’s constitutional courts– the Collegium would be the selecting body and the Government will be the appointing body; the Collegium will have to consider the all India seniority list while appointing judges to the judiciary. The court, as evident from above, emphasised that the Collegium should give an anonymous decision which would mean that the conflict or the reasons for the non-appointment of a candidate, will not be known or disclosed, in general.

Supreme Court Advocates-on-record Association & Anr. vs. Union of India, 2016[5]

It stemmed from a group of petitions challenging the validity of the Constitution (Ninety-Ninth Amendment) Act, 2014 (99th Amendment) along with the National Judicial Appointments Commission Act, 2014 (NJAC Act). These Acts were enacted to replace the Collegium system used for making appointments to the higher judiciary with the National Judicial Appointments Committee (NJAC). The NJAC included the Union Minister for Law and Justice and two eminent persons, besides the Chief Justice of India, and next two senior most judges in the Supreme Court. The Collegium, which the NJAC proposed to replace, included the Chief Justice of India and a forum of the four senior-most judges of the Supreme Court. 

The Supreme Court struck down the amendment to the Constitution down saying that it breaches the Theory of Separation of Powers. The majority opinion of the court held that the involvement of the executive in the appointment of judges impinged upon the primacy and supremacy of the judiciary and violated the principle of separation of powers between the executive and judiciary which formed part of the basic structure of the Constitution. The dissenting judgement by Justice Chelameshwar argued that the independence of the judiciary is not established by merely the primacy of the opinion of the Chief Justice or the Collegium.

Conclusion

The Collegium system could withstand one attempt to dilute it, by the executive, via the NJAC judgement but a better accountable system of appointing judges will not be, arguably a bad thing. Since the power of judiciary resides in the trust of people in the system, a transparent system which checks and balances, with more accountability of those who appoint the judges to appoint judges to the higher judiciary will only make the democracy stronger.

The context and timing of the demand for an NJAC and the track record of the present regime in giving a go-by to all constitutional and parliamentary procedures and principles has invited charges of ‘Parliament is being used to dismantle the Indian Constitution brick by brick.’

Given this conundrum, the appointment of higher court judges and the need for accountability and transparency remains stuck, between a rock and a hard place.

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हालांकि केंद्रीय राज्य मंत्री किरण रिजिजू ने हाइड्रल प्रॉजेक्ट में लगे करप्शन के आरोप पर सफाई दी है। रिजिजू ने कहा कि उनके खिलाफ झूठी खबरें प्लांट की जा रही हैं। रिजिजू ने एक विवादित टिप्पणी करते हुए कहा कि ऐसी खबरें प्लांट करने वाले अगर उनके यहां आएंगे तो जूते खाएंगे। अरुणाचल के हाइड्रल प्रॉजेक्ट में करप्शन के आरोपों में कथित तौर पर रिजिजू का नाम भी सामने आया है।
 
अंग्रेजी अखबार 'इंडियन एक्सप्रेस' की रिपोर्ट में किरण रिजिजू और उनके एक चचेरे भाई गोबोई रिजिजू (अरुणाचाल में ठेकेदार) का जिक्र किया गया है। हालांकि एक न्यूज चैनल से बातचीत करते हुए रिजिजू ने कहा है कि गोबोई नाम का उनका कोई भाई नहीं है।
 
आपको बता दें कि किरण रिजिजु पर ये आरोप अरुणाचल प्रदेश में एक बड़े हाइड्रो पावर प्रोजेक्ट के लिए बनने वाले 2 बांध में 450 करोड़ रुपए के घोटाले का है। सार्वजनिक उपक्रम की कंपनियों के चीफ विजिलेंस ऑफिसर सतीश वर्मा ने रिजिजू, उनके चचेरे भाई और ठेकेदार गोबोई रिजिजू, नॉर्थ ईस्टर्न इलेक्ट्रिक पॉवर कॉरपोरेशन के मैनेजिंग डायरेक्टर और कॉरपोरेशन के कई अफसरों के खिलाफ 129 पन्नों की रिपोर्ट सीवीसी, सीबीआई और ऊर्जा मंत्रालय को भेजी है।
 

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