“Let judges also remember that Solomon’s throne was supported by lions on both sides: Let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty”
Francis Bacon, ‘Of Judicature’
In a path breaking judgment stretching to over 1000 pages, a Constitution Bench of the Supreme Court comprising of 5 judges (all of whom have penned words in sequence of seniority) in SCAORA v UOI (4th Judges Case) with a majority of 4:1 declared National Judicial Appointments Commission (NJAC) Act, 2014 and the 99th Constitution Amendment Act, 2014 unconstitutional. The 1+2 and 1+4 Collegiums also stand operative with this judgment for appointments of judges to High Courts and the Supreme Court. Senior most Kehar J has written 452 pages followed by the order of the Court signed by 5 judges. The judgment deals with 4 major aspects – Recusal, Reference, Review of 2nd and 3rd Judges and Constitutional Validity of NJAC. On the question raised by Fali S Nariman on his presence on bench, Kehar J refused to recuse. Reference to larger bench was declined, fresh review of 2nd and 3rd judges was denied and NJAC was declared unconstitutional as per the majority opinion. This is succeeded by the lone dissent by Chelameswar J (Pg 474-584, 121 paras), concurring majority opinion by Lokur J (Pg 585-893, 8+ 577 paras), short concurring view by Kurian J (Pg 894-924, No paras used) and lastly by Goel J till end. There are total 817 citations with overlaps in opinions. In a crux, NJAC was intended to be the constitutional body comprising of the Chief Justice of India, 2 senior most judges of the Supreme Court, Union Law Minister, Leader of opposition and 2 eminent members chosen by a committee of CJI, Prime Minister and Leader of Lok Sabha and must have atleast 1 woman/SC/ST/Minority/OBC representation. The commission was to replace the collegium to recommend names to the Government.
Pre Constitution Era
The final law for judicial appointments was crafted in Articles 124 (Supreme Court) and 217 (High Courts) for higher judiciary. For subordinate judiciary, District Judges were to be appointed Art 233 and other magistrates under Art 234.
Collegium: The procedure in a nutshell
For appointment of High Court judges, the Chief Justice of High Court after consulting other senior judges of that High Court sends a list of names to the Chief Minister who can also suggest a few names and send to the Chief Justice. The recommendations are then submitted to the Chief Justice of India, Union Law Minister & the Governor of the State. The Governor will send the entire bundle to the Union Law Minister who will consider the names. The proposed names are then scrutinized by the Intelligence Bureau through the Ministry of Home Affairs. The names with all sets of papers are then submitted to the Chief Justice of India who forms a Collegium with 2 senior most judges and consult other colleagues well versed with that High Court to advice the Government. The Union Law Minister then submits all papers to the Prime Minister who in turn advices the President to take the final call. The ministry or the President can return the file for reconsideration on certain grounds but if the Collegium recommends again, the President is bound to sign. For appointment of Supreme Court judges, in a similar procedure the Collegium comprises of the Chief Justice of India and 4 senior most judges who recommend names to the ministry. The Chief Justice of India is appointed completely on seniority.
The bench has posted the matter on Nov. 3 at Pg.454 & 1042 for further hearing on the matter as to discuss suggestions to improve the present system of appointments. Interestingly, in his dissent Chelameshwar J strongly condemned the Collegium system, but atleast 2 other judges in their separate opinions have also attested the fact that Collegium has its flaws. Kurian J at Pg 924 – “Therefore, the Collegium system needs to be improved requiring a ‘glasnost’ and a ‘perestroika’, and hence the case needs to be heard further in this regard.” Goel J at Pg 990-991 – “Even a good system may have shortcomings in its working on account of individual failures. It may be mentioned that criticism of working may be leveled against working of every organ of the Constitution including the Executive and the Legislature and while all efforts must be continuously made to bring about improvement in every sphere, the basic scheme set up by the Constitution cannot be given a go bye on that ground……… The improvement in working of existing system of appointment of judges can be the subject matter of separate consideration which is being proposed…..” and at Pg 1021 – “Needless to say that criticism can be against the working of any system but the systems can be changed only as per the Constitution. Efforts to improve all systems have to be continuously made.”
Perhaps, ours is the only Supreme Court which time and again proudly declares I am Supreme. It reminds me of the famous lines – “I believe that the brain is the smartest organ in human body, but then I remind myself who actually is telling me this.” In this lies a very big challenge to the Supreme Court. The hearing on Nov 3 will mark its day in history if a change is admitted.
To conclude, I must quote the final lines of Bacon’s essay I began this paper with –
“Let not judges also be so ignorant of their own right, as to think there is not left to them, as a principal part of their office, a wise use and application of laws. For they may remember what the Apostle saith of a greater law than theirs – Nos Scimus quia lex bona est, modo quis ea utatur legitime. (But we know that the law is good, if a man uses it lawfully)”
Namit Saxena is a lawyer and can be reached at firstname.lastname@example.org.