The BJP, then in Opposition, walked out in protest demanding that the Bill be referred to a Standing Committee so that all stakeholders could participate in the process that would lead to changing the two decades-old system.
The Constitution (120th Amendment) Bill, 2013 tabled by then Law Minister, Kapil Sibal proposed setting up of the JAC, to be decided by Parliament, that would recommend appointment and transfer of Supreme Court and High Court Judges. Currently, the collegium consisting of five senior most judges of the Supreme Court, headed by the Chief Justice of India, decides the appointment of judges to the Supreme Court and High Courts in the country.
The other members of the proposed Commission would be two senior-most judges of the Supreme Court, the Law Minister, Secretary (Justice) in the Law Ministry as Convener and two eminent persons as members.
The then Leader of the Opposition in the Upper House, Arun Jaitley said the government was unnecessarily hastening the passage of the Bill that was of “extraordinary importance” and the BJP staged a walk-out. When the Bill was put to vote, 131 voted in its favour. The lone dissenter was the firebrand jurist Ram Jethmalani who thundered saying, “Both Bills are evil … it will disturb the basic feature of the Constitution. The government was trying to demolish the collegium system and slowly creating a new system that is against the basic nature of the Constitution. I hope people avoid digging the grave of the Constitution. The Bill is wholly unconstitutional … It is useless.”
What is the collegium system? Does it find mention in the Constitution? Was Justice Markendeya Katju’s allegations against Manmohan Singh’s Government in the appointment of a certain Judge to the Madras High Court timed well enough for the NDA Government at the centre to re-open the debate, this time in favour of the JAC?
The answers could well lie in understanding the collegium system which evolved as a mechanism from 3 decisions of the Supreme Court from 1981 to 1998. The collegium system was crafted to keep the independence of the judiciary intact without the interference of the executive or the designs of the legislature to mingle in the appointments or transfers of justices of the Supreme Court and High Courts in India.
Article 124 (2) of the Constitution of India makes it imperative for the President of India to consult the Chief Justice of India and other senior judges in appointing the Judges to the Supreme Court of India, unless it if for the appointment of the Chief Justice of India. Art 217 (2) of the Constitution makes it mandatory for the President that during the appointment of Judges to the High Court, to consult the Chief Justice of India, Governor of the respective State and the Chief Justice of the High Court of that State, unless it is for the appointment of the Chief Justice of that High Court.
The collegium system is a result of three judgments of the Supreme Court that are collectively called the ‘Three Judges Cases’. In S P Gupta vs Union of India (1981) also known as the ‘Judges Transfer Case’, it was held by a 7-Judge Constitutional Bench that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This tilted the matter in favour of the Executive and it was reversed and overruled by the decision of a 9-Judge Constitutional Bench in Supreme Court Advocates-on Record Association vs Union of India in 1993 (also called the ‘Second Judges Case’) where the species of the collegium system took root. In this case, it was held that “justiciability” and “primacy” required that the Chief Justice of India be given the “primal” role in all appointments to the Supreme Court and High Courts. The collegium system has stayed good since then. Late Justice J S Verma, who wrote the majority judgment in this case, asserted the role of the CJI by saying “the role of the Chief Justice of India is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter..”
There were then instances of inconsistencies wherein it was alleged that the Chief Justice of India took unilateral decisions without consulting his 2 colleagues in the appointment and transfers of Judges. The President also felt that his role was marginalized and that he had become a mute approver of the process. It was therefore, in 1998, that President K.R. Narayanan issued a Presidential Reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The Supreme Court, in its reply, laid down nine guidelines for the functioning of the coram for appointments and transfers. This is what the present collegiums concept is. The judgment presided over by Justice S P Bharucha, took a no-hold-barred stand of the higher judiciary’s primacy over the Executive.
In 2003, the NDA Government introduced the JAC Bill under Arun Jaitley’s stewardship as Law Minister, but due to dissolution of Lok Sabha, it could not see the light of the day.
The collegium system is criticized for being a burden on the judiciary since it is administrative time that robs judicial hours. It is also criticized for being a ‘closed-door’ process.
Law Minister Ravi Shankar Prasad has convened a meeting of “all major stakeholders” to decide the fate of the Collegium System. Surely, there will be a spate of challenges to the constitutionality of this bill, if it becomes law.
(Harshvardhan Bhatkuly is a lawyer)
