The conflict between the government and judiciary over the appointment of judges is not new to our democracy. The passing of the National Judicial Appointment Commission Act (the “NJAC”) in 2014 marked an intense confrontation between them. India has seen significant discontent over the manner of appointments of judges in higher judiciary. In October 2022, the erstwhile Law Minister stated that the judiciary is preoccupied with making judicial appointments when their primary job is to deliver justice. He further complained about the lack of accountability of the collegium system and affirmed that the appointment of judges ought to be an executive function instead of the Judiciary. The erstwhile Law Minister was referring to Supreme Court Advocates-on-record Association & Anr. vs. Union of India (2016) 5 SCC 1 that struck down the NJAC Act as void and unconstitutional.

The Supreme Court objected to the minister’s remark on collegium and observed that the government appears unhappy since the NJAC could not pass the constitutional muster. Vice President Jagdeep Dhankar also criticized the Supreme Court Advocate on record Judgment (Supra) for going against the people’s will and disregarding constitutional sovereignty. This whole saga put forth a question of what would be the ideal procedure for the appointment of judges in India. Who should have the dominant say in judicial appointments?

The appointment of judges in the higher judiciary through the collegium system has evolved through three constitutional bench judgments. In 1981, the Hon’ble Supreme Court in S P Gupta v Union of India AIR 1982 SC 149 held that the recommendation of the Chief Justice of India (the “CJI”) is not binding on the government. Prior to this Judgment, the appointment was done by the President in consultation with the CJI if he/she deemed fit. However, the S P Gupta judgment (Supra) was overruled in the Second Judges case i.e. Supreme Court Advocates-on-Record Association and Anr. vs. Union of India (1993) 4 SCC 441 that established the primacy of the judiciary in making appointments. Thereafter, in 1998, the Supreme Court further tweaked its judgment of 1993 and widened the Collegium to five judges in In Re Special Reference No. 1 of 1998 (1998) 7 SCC 739. Finally, the NJAC Act was passed along with the 99^th Constitutional Amendment. The NJAC Act attempted to replace the Collegium system of appointments with a commission including executive, legislature and Judiciary. However, before the Government could operationalize the NJAC Act, the Supreme Court struck it down as unconstitutional in the Supreme Court Advocate on Record Association and Another V Union of India (Supra).

What led to the enactment of the NJAC Act

The Collegium was criticized because of a lack of transparency in its operation. Further, women and those from Schedule Castes, Schedule Tribes, and religious and sexual minorities continued to be excluded from the judiciary. NJAC was established by amending the Constitution. The Constitution (Ninety-Nine Amendment) Act, 2014 was passed, which inserted three key Article-124A, 124B and 124C and amended clause 2 of Article 124. Article 124A defined NJAC and delineated its members; Article 124B vested in NJAC the power to make appointments to both the Supreme Court and the various High Courts, whereas 124C gave parliament the power to make laws regulating the NJAC’s functioning. However, the Supreme Court in Advocate-on-Record v Union of India (Supra) held that the Act was void and restored the collegium system. Justice Khehar, in its lead opinion, supported the correctness of the Second Judges Case and determined the primacy of judges in judicial appointments.

Political Involvement in the Appointment of Judges

The NJAC Act was struck down because it had grave errors and flaws. The main concern was the involvement of politicians in the appointment process. The Chief Justice and two senior Justices could veto any name proposed for appointment to a judicial post if they do not approve it. However, the judges required the support of other commission members to get a name through. The purported idea of the NJAC Act was to enable the equal participation of the judiciary and the executive. Since there was no authority to keep a check and make the judiciary accountable, the political organ was preferred to be kept within a circumscribed role in the appointment process instead of keeping them out.

However, the understanding that the executive had no role in the appointment procedure was not correct. The law enforcement agencies send reports on every potential candidate for judgeship as recommended by the collegium, discussing their integrity, antecedents, and character, based on which the collegium makes the final decision. Moreover, apart from making appointments, the Constitution accords significant power to the hands of the legislature through its various Articles to keep a check on the functioning of the judiciary. The Parliament, by simply making a law, may change the age of the Judge of the Supreme Court under Article 124(2A), salaries and privileges, and allowance of the Supreme Court Judge under Article 125(1) and Article 125(2), respectively, etc. Though the NJAC was struck down, it still has passive involvement on who would preside over the bench.

Why is it important to insulate the appointment process from the influence of the executive?

The answer rests in history. There are many instances when the Government has tried to impede the set principles and norms in the appointment process for its benefit.

• One of the first attempts to undermine the Independence of the judiciary happened in 1973 after the 13 Judge bench delivered its opinion in the landmark case Keshavananda Bharti v State of Kerala (1973) 4 SCC 225 and ruled that any amendment that violated the basic structure of the constitution is beyond the amending power and therefore void. After this opinion, Justice A N Ray, who was among the dissenters, was promoted to Chief Justice of India, superseding three senior judges, Justice Shelat, Justice Grover and Justice Hegde, breaching the convention of seniority. Justice Khanna also, in his memoir, discussed the above suppression of Justice Shelat and others and later shared his own suppression that came after his dissent in the A.D.M. Jabalpur V Shiv Kant Shukla (1976) 2 SCC 521.
• Another attempt was the scuttling of the appointment of Gopal Subramanium. He was unanimously recommended for Judgeship in 2014. However, he had to write a letter to the Chief Justice of India to withdraw his consent. He was considered persona non grata by the current Government; thus, when the Collegium recommended his name, a smear campaign was unleashed in the media, allegedly at the tip of the Government.
• Stalling of recommendations for Judgeship when it goes against the interest of the Government.
• The Supreme Court collegium approved Saurabh Kirpal’s recommendation in 2021. However, the same was referred back to the Collegium in 2022. One reason for returning the name was the candidate’s involvement in and attachment to the cause of gay rights. Law Minister wrote a letter to the collegium on April 2021 stating that though “homosexuality stands decriminalised in India, nonetheless same sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India”. Moreover, his ardent involvement and passionate attachment to the cause of gay rights would not rule out the possibility of bias and prejudice. However, the Collegium reiterated the proposal for their appointment, rejecting the objections.
• The Collegium cleared Someshekhar Sundersan’s name for elevation in 2021, but the Central Government returned the file. The Government sought his reconsideration because he aired his view on social media on several matters which are sub-judice. The Department of Law and Justice made the objection that he is a “highly biased opinionated person” or that he has been “selectively critical on the social media on the important policies, initiatives, and directions of the Government”. However, the Collegium believed that “expression of views by a candidate does not disentitle him to hold a constitutional office so long as the person proposed for a judgeship is a person of competence, merit and integrity”.
• Moreover, in a resolution passed on 21 March 2023, the Supreme Court mentioned the name of Advocate John Sathyan, whose name has yet to be approved by the Centre for an appointment at Madras High Court despite the Collegium having reiterated his recommendation. The Centre had objected to Sathyan’s appointment on the ground that he had shared an article that was critical of the Prime Minister.
• The recent appointment of L. Victoria Gowri in the Madras High Court has brought into the picture how the Government could use its position in the appointment process. She has allegedly been accused of hate speech against Muslims and Christians. The matter was brought before the CJI after the recommendation was already made. CJI stated that the collegium had taken cognizance of the same, but before anything could be done about it, the Government completed the appointment process. This implies that the collegium did not have information about the allegation of hate speech. In fact, this was the duty of the Government through law enforcement agencies to relinquish such information, which is pertinent to examine the suitability of the candidate. Though this also highlights the flaw in the structure, the government could use it by withholding certain information when it approves of a certain candidate.

Independence of Judiciary and Collegium

The judiciary is expected to protect people’s freedom from the influence of the executive. This can only be done when the executive is kept at arm’s length regarding the appointment and transfer of judges. The Collegium system has kept the executive out of the process for appointment of judges since, as history has also shown, the executive could mount pressure on the judiciary and derive benefit. Moreover, a judge appointed by the Law Minister’s assent might not be able to resist the plea of conflict of interest in a matter when the executive has an adversarial role. There is a distinction between a ‘judge with poor understanding of the law’, which is certainly not suitable for the system and a ‘compromised judge who is not free’. As Gopal Subramanium has suggested in his piece, “the true constitutional quest is not for a mechanism that appoints the smartest judges, but the freest” Thus, insulation from the executive is necessary to make the judiciary independent; however, the judiciary should strive to make internal reformation to select better judges, as also expressed by the Supreme Court in Supreme Court in Advocate-on-Record V Union of India (Supra).

Conclusion

When we make a comparative chart with or without political involvement in the appointment process, it is preferable that the government has the least influence in the appointment process to save democracy and the rule of law. Anything else might lead to a conflict of interest as the government is an interested party in the process of being the largest litigant in the court. Dr B.R. Ambedkar said in the constituent Assembly, “There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself”. Thus, apart from independence, the collegium needs to bring reformation in its work to assuage the criticism that it faces. The problems that need to be addressed in the Collegium System are:-

• Transparency – The appointment of judges has been secretive, with no information to anyone outside the Collegium. The Collegium itself has shown the way how this trend could be changed. The Collegium has answered in detail the objection raised by the Government while reiterating the name of Saurabh Kirpal, Someshekhar Sundersan, and others. This process could be entrenched in every recommendation made by the Collegium. Further, before making the recommendation, the Collegium could place the information in the public domain so that any incriminating information that might have missed the consideration of the Collegium can be brought before it.
• Diversity – The Bench has an acute shortage of judges from diverse backgrounds. The Collegium could make an internal rule to accord preference to candidates from diverse backgrounds. Schedule Caste, Schedule Tribe and Religious Minorities remain excluded from the judiciary. Diversity enhances judicial thinking and brings lived experience to the table. It enhances public confidence in the courts and builds greater trust in its judgments.
• The recommendation of the Collegium should be subject to Judicial Review. Once a collegium recommendation has been made, the only way of contesting it is through a legal challenge. However, the Supreme Court handed down its verdict in the case of Anna Mathews v Supreme Court of India Writ Petition (Civil) No. 148 of 2023, where the petitioner was seeking ex parte injunction against the swearing-in of L Victoria Gowri as a judge of Madras High Court. The Court held that it is only the eligibility and not suitability of a person for the post of a judge which can be challenged and Collegium decisions are not subject to judicial review. However, as already discussed, it benefits the political executive because the proceedings are opaque, and the only other party is the government; the government can influence the material based on which the collegium determines suitability.