Union Law Minister Kiren Rijiju said that appointing judges is the executive’s domain that should be carried out in consultation with the Chief Justice of India (CJI), but the Supreme Court expanded the meaning of “consultation” to “concurrence”.
- Mr. Rijiju made the remarks on October 17 while speaking at Sabarmati Samvad organised by Panchjanya.
Key observations of Kiren Rijiju
- Half of the time judges were “preoccupied” with deciding appointments and as a result, their primary job of delivering justice “suffers”.
- Till 1993, every judge in India was appointed by the Law Ministry in consultation with the Chief Justice of India. We had very eminent judges at that time. The Constitution is clear about it. It says that the President of India will appoint judges, which means the Law Ministry will appoint judges in consultation with the Chief Justice of India.
- The Supreme Court in 1993 defined consultation as concurrence.
- In no other field has consultation been defined as concurrence but in judicial appointments.
- The Collegium system was expanded by the judiciary in 1998.
- Nowhere in the world except India is there a practice that judges appoint their brothers as judges.
- The process of consultation for the selection of judges is so intense that groupism develops in it.
- People can see politics among leaders but they do not know the politics going on inside the judiciary.
- The executive and the legislature are bound and regulated by the judiciary, but if the judiciary goes astray, there is no mechanism to control it.
- There are a bunch of 40-50 lawyers who have created a monopoly in the Supreme Court just because they speak good English.
What is Collegium system?
- Articles 124(2) and 217 of the Constitution deal with the appointment of judges to the Supreme Court and High Courts.
- Article 124(2) says: “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.”
- Article 217 says: “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.”
- The collegium system is the way by which judges of the Supreme Court and High Courts are appointed and transferred.
- The collegium system is not rooted in the Constitution or a specific law promulgated by Parliament; it has evolved through judgments of the Supreme Court.
- The Supreme Court Collegium is a five-member body, which is headed by the incumbent CJI and comprises the four other seniormost judges of the court at that time.
- A High Court collegium is led by the incumbent Chief Justice and two other seniormost judges of that court.
What are three “Judges Cases”?
The collegium system evolved out of a series of judgments of the Supreme Court that are called the “Judges Cases”.
- 1st Judges case: In ‘SP Gupta Vs Union of India’, 1981, the Supreme Court by a majority judgment held that the concept of primacy of the CJI was not really rooted in the Constitution. It held that the proposal for appointment to a High Court could emanate from any of the constitutional functionaries mentioned in Article 217, and not necessarily from the Chief Justice of the High Court.
- The term “consultation” used in Articles 124 and 217 did not mean “concurrence” – therefore, although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them.
- 2nd Judges Case: In ‘The Supreme Court Advocates-on-Record Association Vs Union of India’, 1993, a nine-judge Constitution Bench overturned the decision in ‘SP Gupta’, and devised a specific procedure called the ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
- The majority verdict in the case accorded primacy to the CJI in matters of appointment and transfers, and ruled that the term “consultation” used in the Constitution would not diminish the primary role of the CJI in judicial appointments.
- 3rd Judges case: In 1998, then President KR Narayanan issued a Presidential Reference to the Supreme Court under Article 143 of the Constitution (advisory jurisdiction) over the meaning of the term “consultation”. The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.
- In response, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments and transfers.
- In its opinion, the Supreme Court laid down that the recommendation should be made by the CJI and his four seniormost colleagues — instead of two, as laid down by the verdict in the Second Judges Case. Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted. It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.
NJAC
- The Justice M N Venkatachaliah Commission, formed by the government, recommended that a National Judicial Appointments Commission (NJAC) should be set up, consisting of the CJI and two seniormost judges of the Supreme Court, the Law Minister of India.
- The NJAC was established by amending the Constitution of India through the 99th constitution amendment, 2014.
- In 2015, a five-judge Constitution Bench of the Supreme Court struck down as unconstitutional the constitutional amendment that had sought to create the NJAC, in which a significant role had been envisioned for the executive in appointments to the higher judiciary.
- In 2019, a nine-judge Bench of the court dismissed a plea for a review of its 1993 verdict in the so-called ‘Second Judges Case’, which is widely understood to be instrumental in establishing the existing “collegium system” of appointing judges in the higher judiciary.
Criticisms
- The system is non-transparent, since it does not involve any official mechanism or secretariat.
- It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria, or even the selection procedure.
- There is no public knowledge of how and when a collegium meets, and how it takes its decisions. There are no official minutes of collegium proceedings.
- Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.
(Sources: The Hindu and Indian Express)
