What is Independence of Judiciary?
The independence of the judiciary is a fundamental principle in a democratic society. It ensures that the judiciary, the branch of government responsible for interpreting laws and administering justice, can function without undue influence from the other branches of government (legislative and executive) or from external pressures.
Importance of Independence of Judiciary:
Impartiality: An independent judiciary ensures that judges can make decisions without fear of reprisal or favoritism, leading to fair and impartial judgments.
Protection of Rights: It safeguards individual rights and liberties by providing a neutral forum for resolving disputes.
Checks and Balances: An independent judiciary acts as a check on the powers of the other branches of government, preventing abuse of power.
Public Trust: It maintains public trust in the justice system by demonstrating its integrity and fairness.
What is collegium system?
The Collegium System is a method of appointing Judges in India. It is a system in which CJI and 4 other judges of Supreme Court recommends candidates for judicial appointments to the President of India. The President then appoints the judges based on these recommendations.
In other words, the collegium system is a mechanism used in India to appoint judges to the Supreme Court and High Courts. It involves a collegium of senior judges who recommend appointments based on merit and seniority. This system is designed to ensure judicial independence by removing political interference in the appointment process.
This collegium system evolved from the case of S.P. Gupta v. Union of India 1981 Supp (1) SCC 87 which is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years. And also held that the word “consultation” in Article 124 & 127 doesn’t mean “concurrence” and the ultimate power would be vested with the President.
In 2nd Judges Case, SC Advocates on Record Association vs UOI (1993), the majority verdict written by Justice J.S. Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S.P. Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. This verdict gave birth to Collegium system. In the event of conflict between President and CJI with regard to the appointment of judges, it was the CJI whose opinion not only have primacy but would be determinative in nature.
In 3rd Judges case, In re Presidential Reference Case, a 9 judge bench of the SC has unanimously held that recommendations made by the CJI on the appointment of judges of Supreme Court and High Court without following the consultation process are not binding on the government. The consultation requires consultation of plurality of judges. The court held that in regard to the appointment of judges to the SC under article 124(2), the CJI should consult “a collegium of 4 senior most judges of SC ” and made it clear that if “2 judges give adverse opinion then the CJI should not send the recommendations to the Govt.”
In regard to appointment of judges to High Court, the court held that the collegium should consist of the CJI, 2 senior most judge of Supreme Court, CJ of that High Court and the Governor of that state.
What are the arguments against the collegium system?
Experts point to systemic errors such as:
- – The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;
- – A closed-door affair without a formal and transparent system;
– The limitation of the collegium’s field of choice to the senior- most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.
What moves were taken to correct these?
The Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and III’ recommended two solutions:
- – To seek a reconsideration of the three judgments before the Supreme Court.
- – A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.
ARTICLE 124 OF CONSTITUTION
Establishment and Constitution of Supreme Court
(1)There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.
(2)Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in article 124A 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).
(2A)The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.
(3)A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and–
(a)has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
(b)has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or
(c)is, in the opinion of the President, a distinguished jurist.
Explanation I– this clause “High Court’ means a High Court which exercises, or which at any lime before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.
Explanation II–In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district Judge after he became an advocate shall be included.
(4)A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.
(5)Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4):
(6)Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
(7)No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.
RELEVANT CASE LAWS
S.P. Gupta v. Union of India 1981 Supp (1) SCC 87
Facts: In the year 1981, a multitude of writ petitions were initiated by various legal practitioners across different high courts. The common thread in all these petitions was a challenge to a government order pertaining to the non-appointment of two judges and their subsequent transfer. The first petition was filed in Bombay High Court and the second was in Delhi High Court. These petitions not only contested the government’s order but also raised constitutional concerns regarding the procedure employed for appointing judges to higher courts.
Various questions were issued on the appointment of 3 SC judges for short term which was not justified under article 224.
Issue: The main issue revolved around the constitutional validity of the Central Government’s order regarding the non-appointment and short-term transfer of judges in High Courts.
Challenges to the standing (locus standi) of the petitioners were also raised.
Judgement: The majority decision by 5:2 in this case held that non-extension of additional judge, i.e., Judge S.N. Kumar was valid one. Court ruled that disclosure should only be withheld if it negatively impacts public interest and conflicts with public policy. However, if disclosure is necessary for the public’s benefit, it must be promptly executed. The Court emphasised the concept of an open and accountable government, wherein the government is answerable to the people for its actions.
This concept aligns with the right to information protected under the freedom of speech and expression, as outlined in Article 19(1)(a) of the constitution. In a democracy, transparency and accountability are essential and citizens must have access to information. The only exception to this right is when the information pertains to national security or its disclosure would harm the public interest.
Court sought to shield unpublished documents from being treated as evidence under Section 123 of the Indian Evidence Act, 1872, the Court referred to the precedent set in the case of State of UP v. Raj Narain (1975). In that case, the Court upheld the High Court’s decision to treat unpublished documents as admissible evidence, stating that the court has the authority to determine the potential impact of disclosure on public interest. The Court’s objective is to strike a balance between fairness, justice and the public interest. Court held that the appointment and transfer of judges were deemed to be in the public interest, necessitating the disclosure of correspondence.
SC Advocate on Record Association vs UOI (1993)
-The court overruled the earlier decision in the S.P. Gupta case (1982), which had given significant power to the executive in judicial appointments.
-The court established the collegium system, where a committee of senior judges, led by the Chief Justice of India (CJI), would recommend judges for appointment and transfer. This system aimed to reduce political interference in judicial appointments.
-The judgment emphasized the primacy of the CJI in the judicial appointment process. The CJI’s recommendation, in consultation with senior colleagues, would be considered binding on the executive.
-The court aimed to strengthen judicial independence by ensuring that appointments and transfers were based on merit and judicial considerations, rather than political or executive influence.
In Re Special Reference No. 1 of 1998 (1998) 7 SCC 739
Facts: In 1998, a presidential reference was made to the Supreme Court by the then President K. R. Narayanan on issues arising out of the Second Judges Case. The Attorney general of India made it clear that they are not seeking any reconsideration or review of the verdict in Second Judges case. The case was a reference under Article 143 of the constitution regarding the collegium system and its functioning. Nine questions were formulated for the purpose of clarification.
Issues: whether the consultation with the CJI refers to the CJI and puisne judges /the CJI alone?
Inquiry regarding judicial review of transfers of judges and; the relevance of seniority in making appointments to the Supreme Court.
Judgement: The question put forth by the president was if the term “consultation” requires the consultation with a number of judges in forming the CJI’s opinion or whether the sole opinion of the CJI would be sufficient. In reply to the question, the Supreme Court stated that the expression “consultation with the Chief Justice of India” in the constitution requires the consultation with the plurality of judges. It was observed that the sole opinion of the chief Justice would not amount to “consultation” under the articles.
This case stated that the Collegium system would consists of CJI and four most senior most judges of the Supreme Court. The transfer, as well as the appointment would be questioned or judicially reviewable to the extent that the recommendation was made in consultation with the collegium system a whole.
On the subject of departing from the order of seniority, it was noted that strong cogent reasons need not be recorded as a justification. Instead, the positive reason for recommendation is to be mentioned. Also, the views of the other judges who were consulted for making the decision is to be recorded in writing and conveyed to the Government of India by the Chief Justice along with his opinions. If the guidelines enumerated under this judgment are not followed, the recommendations made by the Chief Justice of India would not be binding on the Government of India. The judgment has been the subject of much debate and criticism. Some argue that it has led to a lack of transparency and accountability in the judicial appointments process, while others argue that it has strengthened the independence of the judiciary.
However, the judgment remains a landmark decision that has shaped the judicial appointments process in India.
SC Advocate on Record Association v. Union of India (2016) 5 SCC 1
Facts: The government, through 99th constitutional amendment, sought to replace the collegium system with the National Judicial Appointments Commission. It was envisaged as an independent commission to appoint and transfer judges of High Court and appoint judges of Supreme Court of India. Article 124A detailed the composition of the NJAC. It was composed of three senior judges (including CJI), two eminent outsiders and the Law Minister. Article 124C delegated the details of the selection process to parliamentary legislation, in pursuance of which the legislature framed the National Judicial Appointments Commission Act. Both the 99th Amendment and the Act were challenged before a Constitution Bench of the Supreme Court on the ground that it subverted the independence of judiciary and the basic structure of the constitution by depriving the judiciary the primacy it enjoyed in appointment of judges.
Issues: Whether the NJAC Act and the 99th Amendment Act were constitutionally valid?
Judgement: Supreme Court by a majority of 4:1 held the 99th amendment and NJAC Act to be violative of independence of judiciary. The majority judges relied on Constitutional Assembly debates and subsequent developments to conclude that the framers intended an independent judiciary free from executive interference.
While analysing the issue of transparency and accountability in the NJAC framework, Justice Lokur observed that the 99th Amendment and the NJAC Act did not take into account the privacy concerns of individuals who had been recommended for appointment as a judge. Referring to the contentions made by the Attorney-General in this regard, he noted that given that proceedings of the NJAC would be completely accessible and if sensitive information about the recommended individual were made public, it would have a serious impact on the dignity and reputation of the recommended individual. Highlighting the need to balance transparency and confidentiality, he rejected the Attorney-General’s contention that the right to know was a fundamental right, and asserted that it was an implicit fundamental right, which was tethered to the implicit fundamental right to privacy and the two implicit rights needed to be balanced.
With this verdict, the appointment shall continue through Collegium system. However, the judiciary has come under a lot of scrutiny due to its lack of transparency and accountability. After giving due considerations to the criticisms against the system, the judgment has promised to consider appropriate measures to improve the collegium system.
The Court by a majority of 4:1 struck down the 99th Amendment and consequently the NJAC Act as unconstitutional and void.
PRESENT QUESTION:
Q. 3/2020. The situation in Valston is similar to India. Therefore, we can rely on the Indian judgment i.e. SCAORA v. Union of India (supra) and it should be held that the 99th Constitutional Amendment Act and NJAC are unconstitutional and must be repeated for ensuring the independence of judiciary.
