Indian Judiciary Reforms

Indian Judiciary Reforms - NJAC vs. Collegium System

Introduction

The Indian judiciary plays a crucial role in upholding the Constitution and ensuring justice. The process of appointing judges to the higher judiciary has evolved significantly, primarily through the Collegium System and the National Judicial Appointments Commission (NJAC). While the Collegium System emphasizes judicial independence, the NJAC aimed to bring transparency and accountability by involving both the judiciary and the executive. However, the NJAC was struck down by the Supreme Court in 2015 for violating the Basic Structure Doctrine. This debate continues to influence discussions on judicial reforms in India.

Collegium System

The Collegium System is a unique mechanism developed by the Indian judiciary for appointing judges to the Supreme Court and High Courts. Though not explicitly mentioned in the Constitution, it evolved through judicial interpretations aimed at ensuring judicial independence from executive interference. Despite its significant role in upholding judicial autonomy, the system has faced criticism for its lack of transparency, allegations of favoritism, and delays in appointments.

Constitutional Basis

• The Collegium System is not mentioned in the Constitution of India.
• It evolved through three landmark Supreme Court judgments collectively known as the Three Judges Cases.
• The system is based on the principle that judicial independence is essential for upholding the rule of law, and therefore, the judiciary should have primacy in appointing its members.
• Articles 124 and 217 of the Constitution deal with the appointment of judges to the Supreme Court and High Courts, respectively. However, these articles use the term "consultation" with the Chief Justice of India (CJI) rather than "concurrence," leading to differing interpretations that ultimately shaped the Collegium System.

Composition

• The Collegium for the Supreme Court consists of:
  • Chief Justice of India (CJI) – Head of the Collegium.
  • Four senior-most judges of the Supreme Court – Members with equal voting rights.
• For the High Courts, the Collegium includes:
  • The CJI of the respective High Court.
  • Two senior-most judges of that High Court.
  • The Collegium’s recommendations are then reviewed by the Supreme Court Collegium before being sent to the government.

Process of Appointment and Transfer

1. Recommendation:
   • The Collegium identifies and recommends candidates for the appointment of judges to the Supreme Court and High Courts.
   • Recommendations are made based on merit, seniority, and integrity, considering both judicial performance and personal character.
2. Review by the Government:
   • The Law Minister reviews the recommendations and forwards them to the Prime Minister, who advises the President.
   • If the government has objections or requires clarification, it can return the recommendations to the Collegium for reconsideration.
3. Final Decision:
   • If the Collegium reiterates its recommendation after reconsideration, the President is constitutionally bound to approve the appointments. This mechanism ensures that the judiciary has the final say, preserving its independence from political influence.

Landmark Cases Shaping the Collegium System

1. First Judges Case (1981) – S.P. Gupta vs. Union of India
   • Background:
     • This case addressed the meaning of “consultation” as mentioned in Articles 124 and 217 of the Constitution regarding judicial appointments.
   • Judgment:
     • The Supreme Court ruled that “consultation” did not mean “concurrence,” giving the executive the final authority in judicial appointments.
     • This interpretation allowed the government to override the CJI’s recommendations, thus reducing judicial independence.
2. Second Judges Case (1993) – Supreme Court Advocates-on-Record Association vs. Union of India
   • Background:
     • The judgment in the First Judges Case was widely criticized for undermining judicial independence. This case sought to redefine the appointment process.
   • Judgment:
     • The Supreme Court overruled the First Judges Case, holding that “consultation” with the CJI meant “concurrence.”
     • This interpretation established the Collegium System, granting the judiciary primacy in the appointment of judges.
     • The CJI, in consultation with senior judges, would have the final say in recommending candidates, limiting the government’s role to a procedural one.
3. Third Judges Case (1998) – Re: Presidential Reference (Article 143)
   • Background:
     • Following confusion over the scope of the Collegium’s authority, the President of India sought the Supreme Court’s opinion under Article 143 of the Constitution.
   • Judgment:
     • The Supreme Court clarified the Collegium's structure, expanding it to include the CJI and the four senior-most judges of the Supreme Court.
     • The judgment emphasized collective decision-making to prevent any single individual from dominating the process.
     • The ruling further strengthened the judiciary’s control over its appointments, ensuring minimal executive interference.
4. Fourth Judges Case (2015) – Supreme Court Advocates-on-Record Association vs. Union of India (NJAC Case)
   • Background:
     • The 99th Constitutional Amendment Act, 2014, established the National Judicial Appointments Commission (NJAC), seeking to replace the Collegium System with a more transparent and accountable mechanism involving both the judiciary and the executive.
   • Judgment:
     • The Supreme Court declared the NJAC unconstitutional by a 4:1 majority, reaffirming the Collegium System.
     • The Court held that the NJAC violated the Basic Structure Doctrine by undermining judicial independence.
     • While the judgment preserved the Collegium System, the Court acknowledged its shortcomings and called for reforms to enhance transparency and accountability.

Criticisms of the Collegium System

1. Lack of Transparency:
   • The Collegium operates without clear criteria or public disclosure of its decisions, leading to allegations of secrecy and arbitrariness.
   • There is no formal mechanism for evaluating candidates, and the reasons for selecting or rejecting nominees are not made public.
2. Nepotism and Favoritism:
   • Critics argue that the Collegium is prone to nepotism and favoritism, with judges favoring candidates connected to influential members of the judiciary and legal community.
   • This perception undermines public confidence in the judiciary and raises concerns about the merit and integrity of appointed judges.
3. Violation of Checks and Balances:
   • The Collegium excludes the executive from the appointment process, disrupting the system of checks and balances envisioned by the Constitution.
   • The lack of executive oversight reduces accountability and raises concerns about judicial overreach.
4. Gender and Social Diversity:
   • The Collegium has been criticized for its limited representation of women, Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs).
   • The judiciary’s homogeneity undermines its credibility and ability to reflect the diversity of Indian society.
5. Judicial Vacancies and Backlogs:
   • Delays in the appointment process contribute to the growing backlog of cases in courts across the country.
   • The Collegium’s slow decision-making and lack of coordination with the government have resulted in prolonged vacancies, affecting judicial efficiency.

National Judicial Appointments Commission (NJAC)

The National Judicial Appointments Commission (NJAC) was introduced as a constitutional body to reform the process of appointing judges to the Supreme Court and High Courts of India. Established through the 99th Constitutional Amendment Act, 2014, the NJAC aimed to replace the Collegium System with a more transparent, accountable, and collaborative process involving both the judiciary and the executive. However, it was declared unconstitutional by the Supreme Court in 2015, reigniting debates on judicial independence and the separation of powers.

Constitutional Basis

• 99th Constitutional Amendment Act, 2014:
  • The amendment inserted Article 124A, 124B, and 124C into the Constitution, establishing the NJAC as the body responsible for appointing and transferring judges to the higher judiciary.
  • It was passed by both Houses of Parliament with an overwhelming majority and ratified by more than half of the State Legislatures, reflecting broad political consensus.
• Objective:
  • To enhance transparency and accountability in the appointment process.
  • To ensure a more collaborative approach by involving representatives from both the judiciary and the executive.

Composition of NJAC

The NJAC comprised six members, reflecting a balance of judicial and executive representation:

1. Chief Justice of India (CJI) – Chairperson of the NJAC.
2. Two senior-most judges of the Supreme Court – Representing judicial expertise and experience.
3. Union Minister of Law and Justice – Representing the executive branch.
4. Two eminent persons – Nominated by a committee consisting of:
   • Prime Minister of India
   • Chief Justice of India
   • Leader of the Opposition in the Lok Sabha or the leader of the largest opposition party.

• Tenure of Eminent Persons:
  • The two eminent persons were appointed for a three-year term and were not eligible for reappointment.
  • This provision was intended to ensure fresh perspectives and prevent long-term political influence.

Functions of NJAC

1. Appointment of Judges:
   • Recommend individuals for appointment as Judges of the Supreme Court and High Courts.
   • Ensure that candidates meet the required qualifications, integrity, and professional competence.
2. Transfer of Judges:
   • Recommend the transfer of High Court judges from one High Court to another to maintain judicial efficiency and prevent conflicts of interest.
3. Accountability and Oversight:
   • Address complaints and allegations of misconduct against judges, ensuring accountability and maintaining public confidence in the judiciary.
4. Consultation Process:
   • While the NJAC had the authority to recommend appointments, it was required to consult with other judges and legal experts to ensure that recommendations were well-informed and based on merit.

Advantages of NJAC

1. Increased Transparency:
   • The NJAC was designed to make the appointment process more transparent by replacing the opaque Collegium System.
   • Its procedures were expected to be more structured, with defined criteria for selecting judges.
2. Balanced Representation:
   • By including both the judiciary and the executive, the NJAC aimed to create a balanced process that respected judicial independence while ensuring accountability.
   • The presence of eminent persons was intended to provide an independent perspective, reducing the likelihood of bias.
3. Accountability:
   • The inclusion of the executive and independent members was intended to reduce allegations of favoritism, nepotism, and political influence within the judiciary.
   • The NJAC’s role in addressing complaints against judges added a layer of accountability that was absent in the Collegium System.
4. Collaborative Approach:
   • By involving multiple stakeholders, the NJAC sought to create a collaborative environment where appointments were based on consensus rather than unilateral decisions.
5. Reduced Executive Dominance:
   • Unlike the pre-collegium era, where the executive had the final say, the NJAC ensured that judicial input remained central to the process, balancing the powers of both branches.

Criticisms of NJAC

1. Ambiguity in Procedures:
   • The NJAC Act did not specify clear criteria for selecting judges, leaving the process open to subjective interpretations.
   • The lack of detailed guidelines raised concerns about consistency and fairness in appointments.
2. Lack of Expertise:
   • The two eminent persons were not required to have legal experience, which critics argued could undermine the quality of judicial appointments.
   • Their role in influencing decisions without legal expertise was seen as problematic.
3. Risk of Deadlocks:
   • With six members and no provision for a casting vote by the CJI, the NJAC could face deadlocks if members were evenly divided.
   • This potential for stalemates raised concerns about delays in judicial appointments.
4. Potential Political Interference:
   • The inclusion of the Union Minister of Law and Justice and the appointment of eminent persons through a political process raised fears of executive interference.
   • Critics argued that involving the executive in judicial appointments could compromise judicial independence and lead to politically motivated appointments.
5. Violation of Judicial Independence:
   • The Supreme Court, in striking down the NJAC, held that the system violated the Basic Structure Doctrine by undermining the independence of the judiciary.
   • The judiciary feared that executive involvement would erode its autonomy and weaken its ability to act as a check on the government.

Supreme Court Verdict on NJAC (2015)

• Case:Supreme Court Advocates-on-Record Association vs. Union of India (2015)
• Bench: Five-judge Constitution Bench
• Judgment:
  • The Supreme Court struck down the NJAC by a 4:1 majority, declaring it unconstitutional.
  • The Court held that the NJAC violated the Basic Structure Doctrine by compromising the independence of the judiciary, a fundamental aspect of the Constitution.
  • While acknowledging the flaws of the Collegium System, the Court ruled that the NJAC’s structure allowed excessive executive influence, which could undermine judicial impartiality.
• Majority Opinion:
  • The independence of the judiciary requires that appointments be made free from executive interference.
  • The presence of the Law Minister and politically appointed eminent persons created a risk of bias and compromised judicial autonomy.
• Dissenting Opinion (Justice J. Chelameswar):
  • Justice Chelameswar dissented, arguing that the Collegium System lacked transparency and accountability.
  • He supported the NJAC’s objective of involving multiple stakeholders to ensure a more transparent and accountable appointment process.

Comparative Analysis: NJAC vs. Collegium System

Lessons from International Models

Several countries have developed judicial appointment systems that balance independence, transparency, and accountability. India can learn from these models to create a more ffective system:

1. United Kingdom:
   • The Judicial Appointments Commission (JAC) is an independent body that includes judges, legal professionals, and laypersons.
   • The JAC’s transparent process and clear selection criteria ensure that appointments are based on merit while maintaining judicial independence.
2. South Africa:
   • The Judicial Service Commission (JSC) comprises members from the judiciary, legal academia, politicians, and civil society.
   • This diverse composition ensures broad representation while maintaining judicial independence.
3. France:
   • The High Council of the Judiciary (Conseil Supérieur de la Magistrature) includes judges, legal experts, and laypersons.
   • It plays a key role in judicial appointments and ensures that the process is transparent and free from political interference.

Way Forward

To address the shortcomings of both the Collegium System and NJAC, India needs a reformed appointment process that ensures transparency, accountability, and judicial independence. Key recommendations include:

1. Reform the Memorandum of Procedure (MoP):
   • Establish clear criteria for judicial appointments and ensure collaboration between the judiciary and the executive while preserving judicial primacy.
2. Enhance Transparency:
   • Publicize the reasons for judicial appointments and transfers to build public trust and dispel allegations of favoritism.
3. Promote Diversity:
   • Ensure better representation of women, Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) to reflect the diversity of Indian society.
4. Timely Appointments:
   • Expedite the appointment process to reduce judicial vacancies and address the growing backlog of cases.
5. Learn from Global Practices:
   • Adopt best practices from countries like the UK, South Africa, and France to create a transparent, accountable, and independent judicial appointment system.

The debate between the Collegium System and NJAC highlights the need to balance judicial independence with accountability. While the Collegium System safeguards judicial autonomy, its lack of transparency and inclusivity remains a concern. On the other hand, the NJAC aimed to introduce checks and balances but raised fears of political interference. The future of judicial appointments in India lies in creating a reformed system that combines the strengths of both models—ensuring transparency, accountability, and diversity while safeguarding judicial independence. Such reforms are essential for maintaining public confidence in the judiciary and upholding the rule of law.