At the bottom of all tributes paid to the judiciary is the little man, walking into a little court, with a little case, and making a little argument to get a little relief. No amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the little man's faith in judiciary.
Ever since Justice NV Ramana took over as the Chief Justice of India, there has been a paradigm shift in the Supreme Court, it has taken the limelight again, restoring it’s former credibility, bringing it from a period of judicial pusillanimity to one of judicial activism.
It shows a rejuvenation happening within the Supreme Court as its role as the guardian of fundamental rights of ordinary people.
Amidst all this, one of the most noticeable actions of the new CJI were the 9 appointments to the top court, after an extended period of what many called a ‘drought’ in the appointments of judges under former CJI Bobde.
These 9 judges included 3 women, one of whom will go on to be the first woman CJI, which in the history of the top court is a first.
But, the question we are dealing with here is how exactly were these judges appointed.
To those familiar, India follows a collegium system of judicial appointments, where 5 of the senior-most judges chose the other judges of the top Court, it was introduced by something polity scholars term as the “three judges cases”, but it wasn’t always like this.
A walk down history
Article 124(2) of the Constitution says that the judges of the Supreme Court are appointed by the President in consultation with the Chief Justice of India.
From 1950 to 1973, the practice had been to appoint the senior most judge of the Supreme Court as the CJI.
This established convention was violated in 1973 when A. N. Ray was appointed as the CJI by superseding three senior judges because of his pro-Government judgements.
Again in 1977, Justice M. U. Beg was appointed as the CJI by superseding the then senior-most judge because of his proximity to the then Prime Minister.
This view of the Government was in fact seconded by the Apex Court itself in the ‘First Judges Case’ (S.P. Gupta vs President Of India) where the top Court gave the Executive the upper hand in appointing the CJI, and the other judges.
The Court said “primacy of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
But, this discretion of the government was curtailed by the Supreme Court 12 years later in the Second Judges Case (SCAoRA vs Union of India) (1993), in which the Supreme Court ruled that only the senior most judge of the Supreme Court should alone be appointed to the office of the Chief Justice of India.
Furthermore, this judgement introduced the collegium system, originally consisting of the CJI, and two senior most judges.
This three-member collegium was supposed to give recommendations to the Government on the names of people to be appointed as SC judges. These recommendations were binding on the Government.
Furthermore, the 9 judge bench while interpreting Article 124(2) said that the word “consultation” really meant “concurrence”, and it took away the Executive’s upper hand while making appointments.
The Third Judges case is not actually a case but was in fact one of the most interesting use of an almost unheard Article of the Constitution, Article 143, the Advisory Jurisdiction of the Supreme Court.
Under Article 143, the President may seek the opinion of the Supreme Court on any question of law or fact of public importance on which he thinks it expedient to obtain such an opinion.
The then President of India, Shri K.R. Narayanan, invoking his constitutional powers asked the Supreme Court for a broader interpretation of the Second Judges Case, and questioned if the phrase "in consultation with the Chief Justice of India" as given under Article 124(2) requires consultation with a plurality of Judges or, is the sole individual opinion of the Chief Justice of India enough.
The Supreme Court while replying to the President unanimously upheld the major premise of Second judges’ case, but increased the number of members of the collegium, and the system has still stayed strong; the collegium consisting of the CJI, and the 4 senior-most judges appoints/transfers judges of the Supreme Court.
A similar practice is followed in High Courts, albeit along with the SC collegium.
Modern Day
Even though the collegium system has been criticized by many, including a former HC judge calling out the system for being riddled with ‘nepotism’, and ‘casteism’, attempts by the legislature to ‘modernize’ the appointments system have been struck down by the Supreme Court itself under the grounds that they threaten the independence of the judiciary, case in question is the National Judicial Appointments Commission brought by the Modi Government which'd have given the power of appointments to the Supreme Court in the hands of a special commission consisting of the Law Minister, the CJI, two senior-most judges, and two eminent members. It was deemed violative to the sacrosanct principle of judicial independence by a Constitution bench of the Supreme Court.
Reports allege that a majority of the HC judges are in some way or the other related to the members of the collegium, but legal luminaries say that these unfounded allegations are too weak to do away with a system that has protected the independence of the judiciary for years now.
However, on the other side of the coin are people who point out that the opaque system of appointments makes the Supreme Court collegium the only institution which appears to have shown utter contempt to its own observation in Raj Narain case, where the Court stressed that in a democracy like ours, secrets in functioning of public institutions can't be allowed.
Furthermore, they argue that there are no parameters available in the public domain as to how the collegium assesses the suitability, integrity and merits of the judges sought to be elevated to the apex court. The entire process is whimsical, random and highly arbitrary.
Their fears are valid, there have been plenty of examples where, in the public eye, deserving judges have not been elevated to the Supreme Court.
The fundamental question here is if the Supreme Court is above the safeguards and measures for transparency, accountability and demographic representation that apply to India’s pillars of democracy?
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