Constitution of India gives high regards to independence of judiciary because constitution makers were aware that judiciary needs to be independent so that it does not work as per whims and fancies of the executive. That is why article 50 was inserted in the constitution which says that the state should take measures to ensure that judiciary is separated from the executive in public services. Now one question arises how do we ensure independence of judiciary?

Is it through security of tenure, allowances or the appointment and transfer process. Judges through various judgment tried to ensure that the independence of judiciary is not compromised because compromising independence of judiciary means compromising the constitution.

For ex. In Keshavnanda Bharti vs UOI case supreme court gave the doctrine of basic structure wherein it is said the basic structure needs to be upheld and certainly independence of judiciary is part of basic structure and tenure ,allowances and appointment process are its features which ensure the independence. In the following article we would deal with how the appointment process of judges ensures the independence along with checking the constitutionality of the appointment system.

What is collegiums system?

Collegium system is the group of judges who appoint the judges of Supreme Court, Transfer the judges from one high court to another. It consist of 4 senior most judges of supreme court and Chief justice of India. Roots of collegiums system went back to late 1980's when the political situation in India was changing and transfer of power took place from congress party to janata party during this time period the extent of influence of executive was so much that when any judge gave any judgment which was against the government, they were punished for it by the way of transfer. Also before the emergence of collegium system.

Article 124(2) gave power to the president of India to appoint the judge which said that as president may deem necessary so it was pleasure of president in the appointment of judges. President being part of executive use to appoint judge who reflects the ideas and ideology of the executive. El clasico example of this is Justice A.N. Ray who was considered as pro government judge who rarely dissent against the government.

He was appointed as CJI surpassing seniority of other judges it is regarded that he was made CJI because he delivered judgment in the favour of government in the case of Keshavnanda Bharti Vs. UOI ,1973 case wherein he said the parliament has absolute power to amend the constitution. Executive tries to capture the power of judiciary so that judiciary does not interfere in functioning of the executive and it can function without unchecked authority.

But on same front judiciary argues that to have healthy democracy they need to have healthy judicial system and which would be ensured when there is no interference in the appointment of judicial appointment. But during 1970's judges were influenced by their connections to political leaders, relatives which rendered them to deliver judgments in favor of government.

1st Judge Case also known as S.P Gupta vs. UOI, 1981

Prior to this judgment, precedent was that independence of Judges to work does not mean that they can act arbitrarily but they can function independently from influence of other constitutional institutions in discharging of their constitutional duties. But in SP Gupta vs. UOI it was said that under Article 124(2) President can appoint judges after taking consultation with the Chief Justice of India but president is not bound by the Consultation of the CJI and primacy was not given to the opinion of judges.

This judgment is important because now executive got supremacy over the judicial scrutiny, president being part of the executive will work on the advice of Council of Ministers and appoint those judges who are mirror image of executive. in this case important portion of judgment was delivered by Justice fazal Ali and Justice Bhagwati wherein they said that Indian Constitution never did strict separation of power, so judiciary cannot be completely isolated and allowed to work without check and that the independence of judiciary need to be confined to the four walls of the Constitution.

Justice Ali also said that constitution has striked a perfect balance between the executive and judiciary because if the president misuses his authority, judicial review can be applied to the decision taken by him/her. Accordingly this judgment shifted the power more towards executive.

2nd Judge Case also known Supreme Court on record association vs. UOI, 1993

1st judge transfer case affected the judiciary in a wide way, now to mitigate it's effect onto judiciary, 2nd judge transfer case took place exactly after 12 years of 1st case. Wherein it was said that giving upper hand to executive in appointment of judges would have negative effect over Judiciary and judicial independence.

Judges in the present case said that primacy should be given to the opinion of chief justice of India but that opinion is not individual opinion of the CJI but along with the opinion of senior most judges of the supreme court similar process for respective High courts this was done to ensure that CJI is not appointing judges based on their political inclination and ideology.

Thus this led to formation of Collegium system in India which is not formed initially by the constitution makers but was added by judicial precedent. Apart from this major part of the judgement which is neglected is that, if the CJI gave any recommendation regarding appointment of a judge which President deems not suitable for appointment on the grounds of Positive Material means that president has to give substantial reasons which are valid to show that the Judge is incapable for the appointment.

Another situation in which CJI has recommended a person for appointment and the president has accepted the same but the senior most judges are of the opinion that concerned judge is not suitable for appointment then that would be permitted and the concerned judge would not be appointed. So this shows that CJI is not alone deciding who will become the Judge rather his decision also goes through the scrutiny by the senior most judges who can independently work without the pressure of CJI thus leading to effective say of other functionaries in the same body. Similarly3rd Judge Case case also known as In special reference ,1998 ,it decided the quorum of the collegium system.

Is Collegium System In Consonance With The Constitution?

Judiciary is the institution to decide whether any law, legislation, acts brought by parliament are in consonance with the constitution because judiciary has the power of judicial review through which it can check the constitutionality of any law , this power has been only given to judiciary and no other constitutional bodies has the same power as per the Constitution.

But what if any decision or any body has been established by the judiciary, who will review it whether it is complimentary to the provisions of the constitution same is the case with collegium system, this body has been established by judiciary and while establishing it judiciary justified that same that it is in consonance with the constitution.

But problems exist in the collegium system because still women's representation is low, judiciary is dominated by the upper caste Hindus , low representation of minorities in judiciary and the most unsolvable problem of Judges family member's success ratio of becoming a Judge. But we need a system which is more of inclusive and diversified.

For example:
Judiciary has always persisted that reservation should be there in legislature to bring SC's AND ST's at par with the General Category of people but when it comes to judiciary they deny any kind of reservation in judicial system at higher level by stating that there is no need of it. Now to tackle this situation parliament at several times brought laws / Amendments to nullify the effect of Judgements and same happened in the case of appointment process of the Judges, Parliament in 2014 brought NJAC (National Judicial appointment Commission) which would have led to end of Collegium System and have led to establishment of a body where Judges would have a greater say but it would not be a dominating say.

But it was struck down by judiciary saying the it is in violation of Basic Structure Doctrine. So it clearly shows that Collegium system would be constitutional until judiciary want it to be, judiciary requires judicial will to change the existing system of appointments Otherwise Collegium system would be Constitutional.

Award Winning Article Is Written By: Mr.Shivam Singh

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