Independence of the Judiciary is a quintessential edifice of Constitutional democracy. The Constitutional court(s) of India are considered to be one of the "strongest courts" of the world and enjoy the trust of its citizens in beneficial adjudication. There are many determining factors ascertaining Judicial Independence but the one which attracts the eye is "Appointment of Judges."
Judges must be independent of the government, their ideology and control. This sentiment is also reflected in the opinion of the Late Shri MC Setalvad when he states, ''The Constitution endeavoured to put judges of the Supreme Court above executive control." It is no surprise that appointments through a collegium have been a turf of urbane tension between the executive and the judiciary, in quest of exercising supremacy which swings from a ‘strong executive’ to a ‘weak court’ or vice versa. Today, the increased statement on the judiciary by the executive is an organized two-fold attack on 'Appointment and on Exercise of Judicial power'.
In the first forty years of the Supreme Court, the executive held 'primacy' in the appointment of judges. One must note that the majority of the judges appointed under this method were independent and held their guard against the might of the government whenever needed even though the government occasionally succeeded in appointing judges of its convenience. It was only in 1992 with the Second Judges' case that this authority of the executive moved over to the judges of the apex court.
In the Second Judges’ matter, the Supreme Court introduced a sui generis method of appointment through collegium, which meant that the CJI in consultation with the two senior-most judges would recommend the appointment of judges to the courts. Court also clarified that 'consultation' under Article 124 of the Indian Constitution meant concurrence with each other. The collegium got its present forms in the Third Judges' case where it was expanded to be a five-judge body including the CJI, which as of today is followed for the appointment of judges along with the 'final' Memorandum of Procedure of 2017 as 'law' of land declared by the Supreme Court of India.
However, the Collegium system has never been above suspicion from the executive and its vested interests. It is also true that the government's perpetual 'recalcitrant attitude' in clearing recommendations of the collegium to the high courts and the Supreme Court is perceived as 'tactical' moves at the cost of harming the health and functioning of the judiciary especially when the government is constitutionally bound to accept the recommendation even after their objection in the first instance has been overlooked by the collegium and names have been reiterated.
The attacks that have recently been made against the Supreme Court's "Strong form of Judicial review" and the collegium system coming from the Vice-President and the Law Minister are not only concerning but also alarming. Both the collegium and the Supreme Court have faced criticism in the past for invalidating the 99th constitutional amendment, which established the National Judicial Appointments Commission (NJAC) and was approved by both Houses of Parliament almost unanimously.
Why was NJAC struck down? NJAC was tabled in the Lok Sabha and Rajya Sabha to formulate a body that was to appoint judges to the Supreme Court and the High Court. Article 124A was introduced in the constitution, which stated that there shall be a body consisting of the Chief Justice of India and two immediate senior-most judges, two eminent persons, and the law minister. Surprisingly, no eminent person, as mentioned in NJAC, is required to have a link to the law in order to choose Supreme Court or High court judges.
This was topped with an arbitrary clause of veto. NJAC stated that if any two of the six members disagreed, the NJAC was unable to make a recommendation. Parliament was given the power to amend any regulation made by the NJAC body, with a simple majority in both houses. There is no more obvious way to sabotage the nomination process and give the government total control over the judiciary. The Supreme Court struck down NJAC, which had structural flaws, therefore violating the basic structure of the Constitution.
Probable reason for verbal attack?
India has embraced liberal constitutional values which are manifested through an independent judiciary. The consistent attack on the appointment and its power of reviewing legislation is an assault on the foundation of Judicial Independence. In all probability, the executive's attempt in taking the bull by the horns emanates from its losing the position of convenience in important constitutional matters to be adjudicated. In doing so, it has signalled an express reservation on the exercise of the Court's power of striking down legislation, deeming it to be "juristocracy". The reservation, however, is thriving on the idea of "popular constitutionalism", which renders that majoritarian process is sufficient, judicial review is unnecessary and any invalidation of laws is the "Tyranny of Unelected". It is, therefore, no exaggeration to say that the reasons for the two-fold blitz on the judiciary by the executive on appointments and exercise of judicial power seem to be an attempt to enfeeble the institution.
Collegium is the law of the land
There is no doubt that collegium is a great issue of concern and while it is true that transparency in appointment through this arrangement is close to none, the reforms introduced in the past have been at perils of deliberate political excursion. Here the issue lies when the recommendations are sent to the executive for approval as per the process defined by article 124. Despite the collegium's repeated requests, the Centre has been withholding names in an effort to restore control over the appointment process.
The Centre is required by law to appoint a candidate when the collegium recommends them. Even though they were recommended together, the Centre occasionally chooses to employ some of the collegium's suggested names while excluding others. Often, more importantly under this government, there has been an issue where the government sits on such recommendations for years. Out of 68 proposals that are still outstanding, the court highlighted that 21 names have been on the list for more than 1.5 years, but the government has not yet moved to nominate the judges.
While the executive may criticize the procedure of appointment of judges, the real issue lies with the government when they don't move forward with appointments and purposely delay the process. Currently, the Collegium system is the law of land as declared by the court and unless a new and better method is brought in, it shall be followed. It has multiple accepted flaws but the solution to it cannot be a badly formed NJAC. In the testing times for democracy, the judiciary is one of those pillars standing which, if it falls, would be akin to a constitutional collapse.
Anubhav Kumar is an advocate and Kumar Kartikeya is a legal researcher based out of Delhi.