The Jharkhand government recently filed a contempt petition in the Supreme Court against the Central Government over the delay in the appointment of the Chief Justice of the Jharkhand High Court which was functioning without a regular Chief Justice for the last six months. It was on September 21 that the Centre notified the appointment of Justice MS Ramachandra Rao as Chief Justice Jharkhand High Court.
The Supreme Court Collegium on July 11 had recommended names of eight judges to be appointed as Chief Justices of various High Courts including that of Jharkhand. However, the Central government's nod for these appointments was kept on hold which led to the filing of the contempt petition. The delay assumed importance as the Supreme Court in 2021 had laid a time limit (of 3 to 4 weeks) for the Centre to notify the appointment if the Collegium reaffirms its recommendation.
Delay in notifying the names recommended by the Collegium is not the only irritant in the judiciary-executive relationship. The very system of Collegium has brought the judiciary and executive at loggerheads on several occasions. While it can be seen as a power tussle between two branches of the government, the independence of the judiciary is the most important strand of this debate.
Working of The Collegium System
The appointment of judges to the High Courts and the Supreme Court in India is made through a Collegium that consists of the Chief Justice and four other senior-most judges. The names approved by the collegium are sent to the government which has a minimum role of providing intelligence inputs on the candidates and at most can seek reconsideration of a candidature by the collegium for once. The final word in the appointment of judges lies with the judiciary. The Collegium system was not part of the original Constitution, rather it is a novel judicial invention—with no parallel in the world.
Constituent Assembly on Appointments of Judges
Safeguarding judicial independence was of utmost concern for the framers of the Indian Constitution. The method of appointment of judges was debated in great detail in the Constituent Assembly. The maximum number of amendments proposed in the Constituent Assembly was related to the article dealing with the appointment of judges. Article 103 of the draft Constitution stated that judges of the Supreme Court shall be appointed by the President after consultation with such of the judges of the Supreme Court and the High Courts in the States as may be necessary for the purpose. The requirement of ‘consultation’ also became a matter of intense debate as the majority of members wanted the consultation to be binding and wanted the consultation to mean concurrence.
However, the Constituent Assembly did not want to create what one of its members TT Krishnamachari
called an "Imperium in Imperio’--an institution completely independent of the executive and the legislature and operating as a sort of superior body to the general body politic.
Dr BR Ambedkar was also against granting unfettered supremacy to the judiciary. The Constituent Assembly gave primacy to the executive as the consultation with the Chief Justice was not to be treated as concurrence. However, it was the ‘Second Judges’ case that institutionalized the Collegium system and established the primacy of the judiciary in judicial appointments.
Major Criticisms of Collegium System
The collegium system has been criticized on the grounds of being opaque in its functioning, as it is completely a closed-door affair; with no established selection procedure or qualification requirements being in place. Collegium has absolute freedom to decide upon the names to be appointed as judges.
In 2011 former Supreme Court judge Ruma Pal while speaking at the 5th VM Tarkunde Memorial Lecture made a very pertinent point. She said, "The mystique of this process (of appointments) is kept secret and confidential between just a few individuals, not more than two or four as the case may be, and the possibility cannot, therefore, be ruled out that howsoever highly placed maybe these individuals, the process may on occasions(sic) result in making of wrong appointments and transfers and may also at times, though fortunately very rare, lend itself to nepotism, political as well as personal and even trade-off”.
Justice Jasti Chelameswar who was the sole dissenting judge in the NJAC case raised serious questions over the working of the Collegium. In his dissenting note, he wrote, "Transparency is a vital factor in constitutional governance. Transparency is an aspect of rationality. The need for transparency is more in the case of the appointment process. Proceedings of the Collegium were absolutely opaque and inaccessible both to the public and history, barring occasional leaks".
Judicial 'primacy' in the appointment of judges was meant to ensure the independence of the judiciary. However, the Collegium system instead established judicial 'supremacy' devoid of any accountability.
Any criticism of the collegium is not meant to undermine the independence of the judiciary or favour a system that in any manner takes away the autonomy of the judiciary. It only aims to highlight the flaws inherent in the Collegium. Also, it highlights the need for a more transparent system, with wider representation that would enhance its credibility and people’s faith in the judiciary.
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