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Some Suggestions To Improve The Collegium System of Appointments

Asim Pandya, Senior Advocate
11 Dec 2022 7:06 AM GMT
Some Suggestions To Improve The Collegium System of Appointments
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We are back to square one upon Supreme Court of India striking down 99th Constitutional Amendment Act which (brought into force w.e.f. 13/4/2015) which inserted Articles 124A,124B,124C in the Constitution of India and made corresponding changes in the Articles 124 and 217, 222. [Please refer to SCORA vs. UOI (2016) 5 SCC 1] In view of the aforesaid development, the collegium system evolved by the Supreme Court in SCORA vs. UOI (1993) 4 SCC 441 as modified in Re Presidential Reference AIR 1999 SC 1 for appointing judges to the High Court and the Supreme Court has continued to be the constitutionally accepted system of appointment of judges in the higher judiciary. In the writer's opinion, the creation of National Judicial Appointment Commission (Referred to as 'NJAC' hereafter) by 99th Constitutional Amendment had struck a fine balance between the right of executive and the say of the judiciary in the matter of appointment of judges to high courts and the Supreme Court of India and transfer of a high court judge from one high court to another. There was nothing so atrocious in the NJAC which would have endangered independence of judiciary which is one of the basic features of our Constitution. But today, it is not necessary to enter into a larger debate of legality or constitutionality of NJAC since the purpose of this article is to suggest reforms in the current collegium system of appointment.

In the aforesaid background, the question now remains is to find out a method to improve the current collegium system which is decried to be suffering from opacity and many other flaws. It must be remembered that as per the current collegium system, the President acting in aid and advice of the council of ministers through Prime Minister appoints high court and supreme court judges or transfers a high court judge from one high court to another. In the matter of appointment of a high court judge, Chief Justice (now collegium)of the High Court concerned, the Governor of the State concerned, Chief Justice of India (now collegium) are also constitutionally envisaged consultees. Similarly for appointing a judge to Supreme Court similar methodology is adopted with slightly different group of consultees. Thus, it cannot be said that the executive or elected representatives have no say in the matter of appointment or transfer of judges. The executive since the inception of the constitution has substantial say in the matter of appointment and transfer of judges of high courts and appointment of supreme Court judges. It is only when there is a difference in the opinions of the executive and the collegium on any recommended appointment or transfer, the views of the collegium, meaning thereby the say of the judiciary will have primacy. In practice, usually the collegium proceeds in accordance with the view of the executive as the executive is better equipped to ascertain the credentials of the recommended candidate. The judiciary has limited resources to find out criminal background of a candidate or other relevant factors affecting his suitability and hence due deference is accorded to the opinion formed by the executive in the matter of appointment of judges. Despite the negative comment from the executive, if the collegium reiterates its recommendation, the executive is bound by the recommendations of the collegium and must appoint the recommended candidate or implement the recommended transfer.

In Re Presidential Reference AIR 1999 SC 1, the Supreme Court has streamlined the procedure for appointment and transfer of judges. The Supreme Court reiterated that meaning of the word 'consultation' and held that it should be the opinion of plurality of judges and not Chief Justice's own personal view in the matter of appointment or transfer of a judge. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment. The Court said that the transfer of puisne Judges is judicially reviewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has not been made in consultation with the four senior-most puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained. The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the concerned High Court does not refer only to those Judges who have that High Court as a parent High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on transfer.

Despite the aforesaid clear enunciation of law, in practice we have noticed many flaws and limitations in the collegium system of appointment. Instances are galore where in the past there was an impasse between the executive and the judiciary with regard to the recommended candidate. Recently the situation has gone from bad to worse. Demands are raised by the people in power to discard the collegium system whereas traditionalists say that it is the only good method of appointment to preserve the independence of judiciary. In this background our task should be to address the flaws and limitations of the existing collegium system and move on with some minor reforms in the system. In the writer's view, the best solution in the current scenario is to allow a full-scale judicial review by the constitutional courts in the matter of non-appointment, non-extension of term or transfer of a judge. The writer would like to make the following suggestions in the collegium system. The suggestions that are being made are completely in tune with the law of the land and not de hors it.

(i) Explanation from the candidate/judge concerned must be called for with regard to any adverse material received against him:

In Re Presidential Reference AIR 1999 SC 1 the Supreme Court held that:

"The Chief Justice of India may, in his discretion, bring to the knowledge of the person recommended for judgeship the reasons disclosed by the Government of India for his non-appointment and ask for his response thereto. The response, if asked for and made, should be considered by the collegium before it withdraws or reiterates the recommendation."

The suggestion is that the word "may, in his discretion" used in the above decision should be read as "shall" and the recommended candidate should be given an opportunity to explain the material to be used against him that has a potential to exclude his name from the list of finally recommended candidates. In such cases the recommended candidate should also be given an option to withdraw his candidature. This suggestion is nothing but integral part of principles of natural justice and fair play which is insisted to be observed by judiciary in any administrative decision. It causes no prejudice to the efficacy of the current collegium system.

(ii) No immunity from disclosure of the reasons recorded on the file when questioned in court:

In S P Gupta versus President of India AIR 1982 SC 149 the Supreme Court held that the correspondences and material exchanged between the between the constitutional authorities during the process of recommending his appointment or non-appointment and deliberation on the fitness of a person concerned cannot be claimed to be privileged from being disclosed under the Official Secrets Act.

"The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Art.19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest…There is a heavy burden of proof on any authority which makes the claim for class immunity…In cases where non-appointment of an additional Judge for a further term or transfer of a High Court Judge is challenged the disclosure of the correspondence exchanged between the Law Minister, the Chief Justice of the High Court, the State Government and the Chief Justice of India and the relevant notings (sic) made by them, could not be said to be injurious to public interest...It is therefore obvious that, in a proceeding where the transfer of a High Court Judge or Chief Justice of a High Court is challenged, no immunity can be claimed in respect of the correspondence exchanged between the Law Minister and the Chief Justice of India and the notings made by them, since, on the balance, the non-disclosure of these documents would cause greater injury in public interest than what may be caused by their disclosure." (Para 66, 81, 82)

The reasons forming part of the decision making process cannot be demanded by a stranger under the Right to Information Act as rightly held in Anjali Bhardwaj versus CPIO, SC(RTI Cell) SLP No.21019 of 2022.

(iii) Mandatory Requirement of Recording views of all consultees in writing rendered futile if judicial review thereof not allowed:

The technique of judicial review is developed to examine the legality and propriety of the decision-making process in the matter of public functions discharged by public authority. If the court finds that the decision-making process is vitiated by any external influence or the decision was taken not for the objectives for which the powers are conferred, the court would set aside the decision. The scrutiny of the reasons that have gone into mind of the authority while reaching the final decision is the prime concern of judicial review. Thus, it is absurd to exclude full-scale judicial review of such an important decision of not appointing a person as a judge or transferring a judge. Justice Fazal Ali in S.P Gupta's case was in favour of judicial review in the matter of non-appointment or non-extension of the term of a judge appointed as additional High Court judge.

The Third Judges' Appointment case states:

"The opinion of all members of the collegium in respect of each recommendation should be in writing. The ascertainment of the views of the senior-most Supreme Court Judges who hail from the High Courts from where the persons to be recommended come must also be in writing. These must be conveyed by the Chief Justice of India to the Government of India along with the recommendation. The other views that the Chief Justice of India or the other members of the collegium may elicit, particularly if they are from non-Judges, need not be in writing, but it is advisable that he who elicits the opinion should make a memorandum thereof, and the substance thereof, in general terms, should be conveyed to the Government of India. The senior-most Judge in the Supreme Court from the High Court from which a prospective candidate comes would ordinarily know his merits and demerits, but if per chance he does not, the next senior-most Judge in the Supreme Court from that High Court should be consulted and his views obtained in writing. The objective being to procure the best information that can be obtained about a prospective appointee." (Paras 17, 17-A, 18 , 41)

The aforesaid requirement of recording reasons on file becomes redundant, if they are excluded from being judicially examined by the constitutional court. Thus, it is implicit in the requirement of recording reasons on file that they are to be tested in the court when someone questions the decision in the court.

(iv) Full-scale Judicial Review with regard to transfer or non-appointment of a candidate/judge:

Judicial review forms part of the basic structure of our constitution. The concept of limited judicial review enunciated by the Supreme Court in the matter pertaining to the transfer or non-appointment of a candidate/judge, militates against the very concept propounded by the Supreme Court. High Constitutional functionaries are involved in the decision-making process is no ground for excluding full-fledged judicial review. Sunrays are best disinfectants. Moreover, law makes no difference between great/high ranking officers and petty officers, thank God they all are amenable to justice. Refer to Wilmot J in Wilkies vs. Wood 1769 (19) St.Tr 1406, DTC vs. DTC Mazdoor Union AIR 1991 SC 101 (para 223,225 Per Sawant J)

The statement of law that eligibility can be subject matter of judicial review but suitability is not is a strange proposition of law. Eligibility has been a subject of quo warranto proceeding since time immemorial. The Supreme Court while saying that the eligibility is subject to judicial review has said nothing new. Moreover, the Supreme Court has said that the candidate concerned can seek judicial review only with regard to the question whether the consultative process as envisaged in the Second and Third Judges' Appointment case has been followed or not, but he cannot seek judicial review on the contents of the consultative process. The whole concept of judicial review is premised on the quest whether the decision-making authority has been guided by relevant material and that its decision is not influenced by extraneous considerations viz. political, personal or other biases or prejudices or for unlawful purposes. It must be an independent decision of the authority not superimposed by any other person or outside authority. Full judicial review is in public interest and also in the interest of the judiciary.

(v) Difference between challenging appointment by proceeding in the nature of quo warranto vis a vis challenging non-appointment at the instance of the candidate:

There cannot any dispute for the proposition of law that when someone is challenging the appointment of a high court judge, the court's inquiry is limited to examining the question whether the person is possessing the eligibility criteria stated in Article 217 or 124 by a petition in the nature of quo warranto. In an appropriate case the court may also inquire whether the mandatory consultation process as interpreted by the Supreme Court of India in Second and Third Judges' Appointment in the context of Articles 124 and 217 of the Constitution of India has been followed or not. This will be a proceeding of judicial review at the instance of a third party.

However, so far as the question of non-appointment, non-extension of term or transfer of a judge is concerned, the judicial review at the instance of the proposed candidate or the proposed transferee judge should be more intrusive. The reason for more intrusive judicial review is that it affects personal reputation of the proposed transferee judge or whose term is not extended, his judicial independence and judicial independence of the institution as a whole. So far as the non-appointment of a recommended candidate is concerned, he has a right to know the reasons for his non-appointment, right to explain against any adverse material to be used for his exclusion, to withdraw his candidature if he so choses and seek full scale judicial review of the process that led to his non-appointment. When the Supreme Court says that eligibility can be subject matter of judicial review buy suitability cannot be, it forgets that most of the aspects concerning the suitability of a candidate except, his personal traits/character, can be tested on objective material. The following aspects concerning the suitability of a recommended candidate can be examined in judicial review proceeding:

  • Income (life style, immovable properties, cars owned and foreign travel) vis a vis income tax payment made by him for ascertaining his honesty
  • Standing in the profession for ascertaining his general experience
  • Educational qualification viz. bachelor, master or doctorate or any other additional degree for ascertaining his basic knowledge
  • Contribution in the legal field viz reported judgments, articles or book written, lectures delivered etc for ascertaining his additional knowledge, expertise and capability
  • Number of cases filed every year and total cases filed in last five years to ascertain his actual court appearances and experience
  • Pro bono work, legal aid work or amicus curiae to ascertain humanity
  • Criminal activities or connection with any banned organization or criminal antecedents to rule out appointing such a person as a judge.

Thus, it is improper to exclude judicial review of the assessment made by the constitutional functionaries by a sweeping statement that suitability of a recommended candidate cannot be examined in the proceeding for judicial review.

The aforesaid suggestions if implemented at the earliest, nobody will be able to label the collegium system being non-transparent or a closed-door affair. The full-scale judicial review would act as a sufficient check over the executive excesses or political interference or factors other than merit going into the decision-making process. Let us give a sincere thought to the aforesaid suggestions and evolve a system which may satisfy the aspirations of the people of India to get best judges and independent judiciary. Judiciary should not be averse to openness and judicial scrutiny of its decisions by its peers.

The author is a Senior Advocate practicing at High Court of Gujarat.

Views are personal.

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