In the wake of Justice J. Chelameshwar’s recent letter to the Chief Justice of India objecting to the manner and method of functioning of the collegium system for appointment of judges of the higher judiciary—High Courts and Supreme Court—several complex questions concerning the governance of the country and impacting the delicate balance engrafted in the Constitution between the three state organs—Legislature, Judiciary and the Executive—have arisen. Himself being a member of the Collegium of the Supreme Court, comments on the collegium system by the judge stunned the whole country.

All power tends to expand: judicial power is no exception. Justice Chelameshwar’s letter to the Chief Justice of India as reported in the press opines that the collegium system is opaque, no discussions take place about the suitability and the merit of the persons considered for high judicial offices and even files relating to the discussions are unavailable. Do some of the members of the collegium come with pre-determined views and seek to push them through without any discussion? No reasons are recorded as to why a particular selection is made and the public is not informed why the persons considered are endowed with the qualities to fill the high constitutional office. The dissenting views of the members of the collegium were not taken into account, much less any record maintained about the same.

The remedy given by the Chief Justice of India (CJI), as reported in the press, that the issue would be “sorted out”, does not appear to have yet been done.

The structure of the country’s judiciary including transfers and appointments of judges of the High Courts and the Supreme Court was extensively debated in the Constituent Assembly by men of great eminence, erudition and experience. Some members voiced the view that the concurrence of the CJI must be a necessary pre-requisite for appointments to higher judiciary. Emphatically rejecting the same, Dr Ambedkar, the Chairman of the Drafting Committee declared: “With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is very eminent person. But after all the Chief Justice is a man with all the feelings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore think that is also a dangerous proposition.” (Constituent Assembly Debates, Vol.VIII p.258.)

In its final form, the Constitution incorporated provisions ensuring independence of the higher judiciary regarding appointments, tenure, salaries and procedure for removal. The President of India, the Head of the State, is the appointing authority. Appointments are made “after consultation” with the CJI. Although primacy is accorded to the executive, the views of the CJI and Chief Justices of the High Courts were given the highest importance. Judicial independence as envisaged in the original Constitution worked satisfactorily for 42 years till the verdict in the second judges’ case came to be delivered in 1992.

Between 1950-1993, only on seven occasions, the opinion of the CJI was not accepted and the statistics in this regard are contained in the minority judgment of Justice Ahmadi in the second judges’ case (AIR 1994 SC 2041). Despite the above reality, the second judges’ case ruled in favour of not only the primacy of the CJI but also practically eliminated the role of the executive. “Consultation” by judicial interpretation was assigned the meaning “concurrence”.

Keshavananda Bharathi (AIR 1973 SC 1461), a landmark decision in the constitutional history of India authoritatively held that the power of Parliament to amend the Constitution does not extend to amending the basic features and mentioned some illustratively. Judicial independence was one of the basic features which cannot be altered by amending the Constitution. To understand what judicial independence is, one has to look at the position obtaining in 1973 when Keshavananda Bharathi was decided. This position was overturned in the second judges’ case, practically eliminating the role of the executive. The third judges’ case, which arose on a Presidential reference in 1998, has clarified certain procedural aspects of consideration by the collegium.

The magnificent edifice built by the Supreme Court on the judicial side must endure in a manner consistent with democratic precepts and transparency. Public confidence in the institutional credibility must be sought to be maintained at all times. 

To undo the situation and maintain the independence of the judiciary, while at the same time claiming a participatory role in the selection of judges of the higher judiciary, Parliament unanimously passed the Constitution (93rd Amendment) Act and also the NJAC Act. This was challenged in the Supreme Court. The Supreme Court gave a split verdict. Out of the five judges who constituted the bench, one judge, Justice J. Chelameshwar, wrote a dissenting opinion and among the other four, there was no total unanimity. The judgment has revived the status quo ante—judicial supremacy without any meaningful role for the executive.

The practice of judges appointing judges and claiming the same to be integral to judicial independence as an unamendable basic feature of the Constitution has evoked wide comments from lawyers, litigant public, retired judges, jurists and all sections of society. India’s collegium system is nowhere in vogue in any democratic country governed by rule of law. In its working, the system spawned many a consequence. What was thought to be institutional primacy—the Supreme Court and the High Courts in the matter of selection and appointment of judges—turned out to mean exclusive power in the hands of the collegium comprising five judges, with no obvious transparency. Discussion and debate about the credentials of the persons considered for the high judicial office got shrouded in secrecy. The judges of the Supreme Court and the High Courts, who are not members of the respective collegiums, were formally uninformed as to how the selections were made and how persons of “pure merit” as described by Justice Kehar in the majority judgment in NJAC’s case, were chosen. There are undoubtedly many eminent judges outside the respective collegiums, whose wise counsels would have been of immense help in choosing the right type of persons as judges.

In deciding the second judges’ case and the third judges’ case, as well as the NJAC case, the Supreme Court has held that there are certain implied limitations on the powers of Parliament. Time has now come to say that there should be implied limitations on judicial power also at least to the extent of collegium sharing with all the members of the court—Supreme Court or the High Court as the case may be.

Even the author of the second judges’ case, Justice J.S. Verma, after his retirement, revised his opinion and favoured a review in the light of the experience gained after the verdict in the second judges’ case. The intention of the Constitution makers, according to his rethinking, was not to accord primacy to either the judiciary or the executive, and the responsibility was to “find the most suitable person for appointment and this could best be done by a National Judicial Commission representing all wings headed by the Vice President/Prime Minister/Chief Justice of India”. Had this thought permeated his thinking while authoring the majority opinion in the second judges’ case, the constitutional history of India would have been different.

Another former CJI, Justice E.S. Venkataramaiah expressed the view that the construction placed in the second judges’ case about the primacy of the judiciary was problematic. He said: “While in a parliamentary democracy the President may be a mere constitutional head when the power is exercised by him on the advice of the Council of Ministers, he cannot be asked to play the same limited role where the Chief Justice of India who is not an elected representative advices him. One cannot ignore that this may lead to a future occasion to tyranny in another unexpected place… The new meaning given by the Supreme Court appears to be beyond the scope of mere interpretation and virtually amounts to re-writing the relevant constitutional provisions.”

Justice V.R. Krishna Iyer lamented that the second judges’ case had overturned the delicate balance between the three organs of the state engrafted in the Constitution.

Under Article 74, the President of India exercises executive and other constitutional powers on the aid and advice of the Council of Ministers and shall act in accordance with such advice in the exercise of his functions except in matters like choice of the Prime Minister, dismissal of the government which lost its majority in the House but is refusing to quit, dissolution of the House (Shamsheer Singh’s case AIR 1974 SC 2192). The President of India, the Head of the State, is the custodian of the Constitution. He is bound by the oath taken under Article 60 of the Constitution to preserve, protect and defend the Constitution and the laws. Appointments and transfers of judges of higher judiciary are made in the name of the President only on the aid and advice of the Council of Ministers and the advice tendered was only after consultation with the CJI.

The second judges’ case has rendered the role of the Council of Ministers ineffective and the advice tendered in regard to judicial appointments has become a formality; it is nothing but a reiteration of the collegium’s recommendations, which binds the President. What will happen if the President refuses to act upon the advice of the Council of Ministers on the ground that the advice tendered was not an independent one, but was only transmitted to him by the collegiums through the Council of Ministers? The Prime Minister of the country, under Article 78(b), is under constitutional duty to furnish information to the President relating to the “administration of the affairs of the Union”, which expression undoubtedly encompasses appointments to the higher judiciary. The Prime Minister, in such a situation, would be helpless in view of the decimation of executive’s role by judicial verdicts. Should such a situation arise, would the President be within his powers to call for the files from the Supreme Court collegium to satisfy himself that the recommendations are not tainted by mala fides or any other serious legal infirmity suggestive of misuse of authority? On a perusal of the record if the President rejects the recommendations, could his action be faulted on the ground that he had no power to exercise individual discretion? Would not the doctrine of necessity come into play in the context of the Council of Ministers being disabled by judicial fiat from tendering effective advice?

The magnificent edifice built by the Supreme Court on the judicial side must endure in a manner consistent with democratic precepts and transparency. Public confidence in the institutional credibility must be sought to be maintained at all times. Individual judges do command highest respect not only because of the institution of which they are members, but due to the exemplary qualities they possess—intelligence, erudition and impartiality.

In the context of the power of the American Supreme Court that there is no appeal and the Constitution is what the Supreme Court says it is, an American jurist said: “The verdict of the highest court is final only so long as the other branches of the Government and the political process permit its last word to stand” (John Agresto p.10.) The greatest among the American judges, Chief Justice Marshall’s seminal dictum, “we must never forget that it is a Constitution that we are expounding” was realistically described by Justice Frankfurter as the “…most important single sentence in American Constitutional Law” (Bernard Schwartz: History of the Supreme Court, p.38).

As long as there is public acceptance of the higher judiciary, no problems will arise, but if a decision results in social upheavals the inevitable consequence would be confrontation between legislature and the judiciary.

The present situation is unprecedented. It calls for immediate remedial action. There are no readymade solutions. One solution is that the President (Council of Ministers) may refer the following, among other questions, for the advisory opinion of the Supreme Court of India under Article 143(1) of the Constitution: 1. Whether instead of the collegium, the power should be exercised by the institution as a whole—Supreme Court or the High Courts as the case may be? 2. Whether the ambit and scope of judicial independence obtaining when Keshavananda Bharathi was decided could be altered by judicial verdict. If so, whether such alteration would not amount to altering a basic feature of the Constitution forbidden by Keshavananda case? 3. What should be the role of the executive if an alternative mechanism is to be brought into being for appointment of judges of the higher judiciary? 4. Whether the President of India can exercise his individual discretion in regard to appointments to the higher judiciary recommended by the Supreme Court collegium?

A 15-judge bench of the Supreme Court alone would be a proper one to decide the aforesaid questions. A national debate is warranted in this regard. The country is the constituency of concern for the judges of the Constitutional courts and they will be judged by the country. Certainly we may confidently expect the Supreme Court of India to do justice to the high expectations of the people concerning its functioning.

Justice M.N. Rao is the former Chief Justice of Himachal Pradesh, and former Chairperson, National Commission for Backward Classes.

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