Image credit: Scroll.in, September 26, 2017
This is the fifth blog piece in our series entitled “Those Were the Days”, which is published monthly. We hope you enjoy reading this as much as we have enjoyed putting this together.
India’s judiciary has been known for judicial activism with the Supreme Court often deciding to intervene, not just to strike down laws that are held to be unconstitutional, but also in governance, which many believe ought to be the exclusive domain of the executive. While opinion is divided about the desirability of judicial activism, most would agree that it is the judiciary and its fearless will to intervene and deliver justice, even at the risk of stepping into the domain of the legislature or the executive, which has preserved democratic process over the years.
Unfortunately, rampant judicial activism has given rise to an inevitable debate about the balance of powers between the “three pillars of democracy” and then, as a corollary, the question of the manner in which Judges are appointed in the first place. The prevalent “Collegium System” has been severely criticised, as being non-transparent and prone to nepotism, with several jurists and respected members of the bar themselves pointing out that in no other large democracy does an institution so powerful, choose its own members. The time is therefore right to look closely at the history of how the “Collegium System” evolved, through what is known as the Three Judges Cases.
The Constitution of India provides that Judges of the Supreme Court shall be appointed by the President of India in consultation with the Chief Justice of India and other Judges of the Supreme Court and the High Courts as the President of India may deem necessary. Judges of the High Court are appointed by the President of India in consultation with the Chief Justice of India, the Governor of the concerned State and the Chief Justice of that High Court. The powers of the President of India vest with the executive in consonance with Article 74 of the Constitution of India, which was introduced by the 42nd Amendment of 1976.
The word “consultation” is a neutral term that the framers of the Constitution believed would enable the judiciary and executive to form a consensus on the merits of each appointment. The process of appointment was uncontroversial until three Judges who had pronounced judgments in the Kesavananda Bharti Case, which were not looked upon favourably by the Government of the day, were superseded by Justice A.N Ray in 1973 for the post of the Chief Justice of India. This marked the commencement of a struggle for primacy between the executive and the judiciary which has barely abated over the years.
The appointment of Justice A.N. Ray as the Chief Justice of India over three of the most senior Judges of the Supreme Court, was followed in quick succession by what can only be described as steps to curtail the independence of the judiciary. This included using transfers as a stick to come down heavily on Judges who did not conform to the populist polices of the Government, as well as the practice of appointing additional Judges in an effort to place their decisions under the scanner before they were confirmed.
Matters came to a head when the Union Minister of Law and Justice, in a circular dated March 18, 1981, issued directions which were seen to be executive interference in the appointment and transfer of Judges. The constitutional validity of the circular was challenged by a series of writ petitions, which also challenged the practice of appointing additional Judges and the transfer of Judges from one state High Court to another. The Supreme Court finally heard these as a batch matter, which came to be known as the First Judges Case.
By a majority of 4:3, a seven-Judge constitutional bench in the First Judges Case, held that in the appointment of a Judge of the Supreme Court or the High Court, the word “consultation” in Article 124(2) and in Article 217(1) of the Constitution does not mean “concurrence”. In the event of a disagreement between the constitutional functionaries required to be consulted in the appointment of a Judge, the “ultimate power” would be the Union Government and not the Chief Justice of India.
Although there were several extraordinary features of this judgment, and despite the fact that the Supreme Court reiterated that Judges may be transferred from one High Court to another, not as punishment, but only if the same is in public interest and only after consultation with the Chief Justice of India, it committed a singular disservice to its own cause for independence by holding that the the opinion of the Chief Justice of India in judicial appointments would not attain primacy and his role was merely that of an advisor.
The opportunity to restore the balance came with the Second Judges Case. In the late 1980s, a series of petitions were filed before the Supreme Court asking for various vacancies of Judges to be filled in the Supreme Court and High Courts. The three-Judges bench while hearing the petitions observed that the First Judges Case required re-consideration by a larger bench. The Chief Justice constituted a nine-Judge constitutional bench to examine the question of primacy of the Chief Justice of India in the appointment and transfer of Judges of the Supreme Court and High Courts.
By a 7:2 majority, the court overruled the First Judges Case, holding that in the event of conflict between the President and the Chief Justice of India with regard to appointments of Judges, it was the Chief Justice of India whose opinion would not only have primacy, but would be determinative in the matter. Adding checks and balances, the court further held that the powers of the Chief Justice of India would be moderated by a Collegium System, where, for appointments to the Supreme Court and High Courts, the Chief Justice of India would decide after ascertaining the opinion of two of the most senior Judges of the Supreme Court. Similarly, for the appointment of High Court Judges, the Chief Justice of the High Court would make recommendations only after ascertaining the opinion of two of the most senior Judges of the High Court. Therefore, while ensuring that the judiciary had the last word on judicial appointments and transfers, the court sought to blunt criticism by diluting the power of the Chief Justice by making it necessary for him to consult at least two brother Judges.
Thus, the Second Judges Case instead of restoring the balance of power between the judiciary and the executive, resulted in the Supreme Court assuming for itself the upper hand in judicial appointments and ushered in the Collegium System to guard against the charge of non-transparency and arbitrariness. When the executive questioned the recommendation of the Chief Justice of India M. M. Punchhi, to appoint five Judges, the President, in a Special Reference, sought the opinion of the Supreme Court on matters concerning the appointment and transfer of Judges.. A nine-Judge bench of the Supreme Court delivered a unanimous opinion and evolved the Collegium System of appointment of Judges to include the Chief Justice and four of the most senior Judges, as against two, mentioned in the Second Judges Case (Collegium). This came to be popularly known as the Third Judges Case. The Supreme Court categorically held that the expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Constitution requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India.
With the Third Judges Case perpetuating the last word on judicial appointments in the hands of the judiciary itself, a push back was inevitable. It came in 1999 when the Union of India framed a detailed Memorandum of Procedure (MoP) for the appointment of Judges of the Supreme Court and High Courts in consonance with the Second and Third Judges Case.
The Constitution (Ninety-Ninth Amendment) Act, 2014, replaced the Collegium system with the National Judicial Appointments Commission (NJAC) in the context of mounting criticism over lack of transparency and accountability in judicial appointments. It was perceived that collegium consensus was sometimes achieved through a trade-off, resulting in dubious appointments and disastrous consequences for litigants and the credibility of the judicial system.
The Ninety-Ninth Constitutional Amendment and the NJAC Act, 2014, which received assent of the President in December 2014, provided that the appointment to higher judiciary would be now by way of a commission comprising of:
- The Chief Justice of India as the Chairperson, ex officio.
- Two other senior Judges of the Supreme Court next to the Chief Justice of India as Members, ex officio.
- The Union Minister in charge of Law and Justice as Member, ex officio.
- Two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then the Leader of the single largest Opposition Party in the House of the People, as members. One of the eminent persons shall be nominated from amongst those belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women.
The NJAC Act, 2014, provided that if any two persons of the Commission did not agree with a nomination, the NJAC would not recommend such candidate for appointment. Hence, judicial appointments ceased to be the primacy of either the executive or the judiciary and civil society’s participation was now included in the process of appointment.
Within days of the Ninety-Ninth Constitutional amendment and NJAC Act, 2014, coming into force, the constitutional validity of both the Ninety-Ninth Constitutional amendment as well as the NJAC Act, 2014, was challenged. A constitutional bench of five Judges with a majority of 4:1 struck down the Ninety-Ninth Constitutional Amendment Act and consequently the NJAC Act, thereby declaring the said amendment as unconstitutional. This has come to be known as the Fourth Judges Case.
The main reasons stated by the Supreme Court in the Fourth Judges Case for striking down the Ninety-Ninth Constitutional Amendment Act (and consequently the NJAC Act, 2014), were as follows:
- That the inclusion of the Chief Justice of India along with two next senior Judges of the Supreme Court did not provide adequate representation to the judicial component in the NJAC and was insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges. This was in violation of the principle of “independence of the judiciary”.
- The presence of the Union Minister in charge of Law and Justice in NJAC infringes the independence of the judiciary and the doctrine of separation of powers.
- Reciprocity and feelings of pay-back to the political-executive, would erode the independence of the judiciary.
- By doing away with the mandatory consultation of the Chief Justice of India and the Judges, institutional participation of the judiciary is obliterated and that the Chief Justice of India has been reduced merely to a number in the NJAC.
- The initiation for the appointment has been wrested from the Chief Justice of the High Court and only a nomination is sought, reducing him to position of a mere nominating officer.
Though NJAC Act, 2014, was struck down as unconstitutional, the Supreme Court in the course of the hearing, recognised and acknowledged that the Collegium System as it existed, had its own shortcomings. To get its house in order, therefore, the Supreme Court called for suggestions both from legal fraternity and civil society to evolve a more transparent and accountable system of judicial appointments, while calling upon the Government of India to finalize the existing MoP by supplementing it in consultation with the Chief Justice of India, who in turn will take a decision based on the unanimous view of the Collegium comprising the four senior-most puisne Judges of the Supreme Court.
The aftermath of the Fourth Judges Case saw a state of standoff throughout 2016 between the Collegium and the executive in regard to finalising the new MoP. This resulted in several delays in appointments to the higher judiciary despite rising vacancies. The Central Government circulated a draft MoP that was met with stiff resistance by the Collegium, without whose approval the Chief Justice of India could not assent to the same. However, after having been negotiated several times over, recent reports in 2017 indicate that the stalemate regarding the new MoP has finally been resolved. The Collegium, headed by Chief Justice of India J.S. Kehar, D. Misra, J. Chelameswar, R. Gogoi, and Madan B Lokur, have reportedly agreed to the incorporation of certain controversial clauses in the MoP, albeit with changes. Some of the resolved issues include a clause that allows the Central Government to reject a candidate’s appointment on grounds of national security, and the setting up of secretariats in the High Courts and the Supreme Court to maintain a database of Judges that aid the Collegium in the selection process.
Only time will tell whether the controversy has been resolved once and for all and, more importantly, whether the new system will ensure that only the most independent, impartial and competent members of the bar are elevated to the judiciary.
* The author was assisted by Jyoti Dastidar, principal Associate.
 Article 124 and Article 217 of the Constitution of India
 S.P Gupta Vs President of India; AIR 1982 SC 149
 Supreme Court Advocates-on-Record Association Vs Union of India; AIR 1994 SC 268.
 Subhash Sharma Vs. Union of India; 1991 Supp (1) SCC 574
 In re: Under Article 143 (1) of the Constitution of India; AIR 1999 SC 1.
 “An independent Judiciary”- Speech delivered by Ms. Justice Ruma Pal at the 5th V.M Tarkunde Memorial lecture on November 10, 2011.
 April 13, 2015