In Re : Special Reference No. 1 of 1998

SP Gupta v. Union of India AIR 1982 SC 149, according to the ruling of the court, the president is not required to accept the Chief Justice of India’s decision in matters of appointment or transfer. Neither is the term consultation equivalent to concurrence. The supreme acted against its own interest in this case. 

The present case concerned the constitutional validity of specific provisions found in the Lokpal and Lokayuktas Act, 2014, specifically Sections 3(2)(a), 4(1)(d), 4(1)(e), 4(2), 10, 16, 37(2), 63, and the second proviso to Section 4(3), the proviso to Section 14(3), which pertain to the appointment of the Chairperson and Members of the Lokpal to be made by a Selection Committee, comprising the Chief Justice as one of its Members. The aforementioned clause did not give the CJI’s or his nominee’s opinion precedence in this case. In the case of Just Society v. Union of India AIR 2017 SC 2428, the Apex Court affirmed the constitutional legitimacy of the contested provisions, ruling that they were not beyond the scope of Articles 14 and 50.

SC Advocates – on – Record Association v. Union of India AIR 1994 SC 268, This case is popularly known as second judges case. A nine judge constitutional bench overruled the decision of SP Gupta v. Union of India. It was held that –

• In the matter if appointment of judges to Supreme Court and High Court, The president is bound to act in accordance with the opinion of Chief Justice of India, who would render his opinion after taking into account views of the two senior most Juges of the Supreme Court as also the views of other Judges of the Supreme Court whose opinion was likely to be significant in adjudging the suitability of the candidate, would have primacy.
• The opinion of the chief justice would have the greatest weight in the selection of the candidates.
• The selection should be made as a result of “Participatory consultative process”, in which the executive shall have the power to act as a mere check on the powers of the chief justice.
• The judgement therefore led to the collegium system in both Supreme Court and High Court.

Now, doubts had arisen about the interpretation of the law. The President considered it, in the public interest, Regarding the definition of “consultation” under Article 143 of the Constitution (advisory jurisdiction), President K R Narayanan made a Presidential Reference to the Supreme Court in 1998 and submitted nine clarification-related questions to the court.
The Bench observed that the President’s nine queries dealt in general with three areas: 

1. Consultation between the Chief Justice and his brother Judges over the appointment of Supreme Court and High Court Judges, as well as transfers of the latter;

2. Judicial review of transfer of the judges; 
3. The significance of seniority in selecting judges to the Supreme Court

JUDGEMENT OF THE SUPREME COURT

Supreme Court guidelines on appointment

1. The Chief Justice of India must consult with a majority of judges in order to form an opinion, as stipulated by the term “consultation” with the CJI in Articles 124(2), 217(1), and 222 (1). Consultation is not implied by the CJI’s sole and individual viewpoint.
2. The CJI may only suggest, after consulting with the four seniormost Supreme Court justices, the appointment of a judge to the Supreme Court and the transfer of a Chief Justice or puisne judge of a High Court. Regarding the High Courts, the two seniormost Supreme Court judges must be consulted before making any recommendations.
3. For each senior judge who has been passed over, there is no need to document strong, convincing arguments in support of a change in the seniority hierarchy. The “positive reason for the recommendation” has to be noted.
4. The opinions of the judges who were consulted ought to be documented in writing, and the Chief Justice of India should forward them to the Government of India in conjunction with his own opinions, as detailed in the main body of this decision.
5. In making his recommendations, the CJI is required to adhere to the standards and requirements of the consultation process.
6. The recommendations made by the CJI without adhering to the norms and requirements of the consultation process are not binding on the government.
7. The transfer of High Court judges is subject to judicial review only if the Chief Justice of India made the decision without consulting the other four judges in the Supreme Court Collegium, or if the opinions of the Chief Justices of both High Courts involved in the transfer were not obtained.
8. The Chief Justice of India is not authorized to act unilaterally, without consulting other judges of the Supreme Court, regarding materials and information provided by the government that pertain to the non-appointment of a judge who has been recommended for appointment.
9. The Chief Justice of India may consult any of his colleagues on the appointment of a High Court Judge to the Supreme Court or the transfer of a Puisne Judge. This consultation is not restricted to colleagues who have previously served as a Judge or Chief Justice of the particular High Court involved.

WHAT WAS HELD BY THE SUPREME COURT?

1. This opinion established that the recommendation should be made by the Chief Justice of India along with his four most senior colleagues, rather than just two.
2. It also stipulated that Supreme Court judges who originated from the High Court from which the proposed name emerged should also be consulted.
3. Additionally, it was determined that if two judges provided an adverse opinion, the Chief Justice of India should refrain from forwarding the recommendation to the government.

The National Judicial Appointment Commission

On 31st December, 2014, the president assented to The National Judicial Appointment Commission Act, 2014 which provided for the constitution of a six-member NJAC headed by the Chief Justice of India. The NJAC replaced the existing collegium system. The commission was meant to consist of –

1. The Chief Justice of India (CJI) – Chairman, ex-officio;
2. Two senior-most judges of the Supreme Court after the Chief Justice of India – Members, ex-officio;
3. The Union Minister of Law and Justice – Member, ex – officio;
4. Two eminent persons, nominated by a collegium consisting if the Prime Minister, the Chief Justice of India (CJI), and the Leader of the opposition in the House of People. – Members;

The condition was that the eminent persons would be nominated for a three – year term and would not be allowed to be nominated again afterward. The convener of the commission was to be the Secretary to the Government of India in the Department of Justice. 

The Constitution (99th Amendment) Act, 2014, approved by the President, amended Articles 124 and 217. Until these provisions were implemented, existing rules were discussed as follows: A series of Public Interest Litigations (PILs) challenging the validity of the NJAC Act, 2015, along with the Constitution (99th Amendment) Act, 2015, were filed by the Supreme Court Advocates-on-Record Association (SCAORA) and the Supreme Court Bar Association (SCBA). These cases were heard by a Constitutional Bench led by Justice J.S. Khehar. In the NJAC case, the Supreme Court’s Constitution Bench declared the NJAC Act, 2015, and the Constitution (99th Amendment) Act, 2015, unconstitutional.

Despite criticisms of the earlier Collegium system for its lack of transparency, the system was reinstated and guidelines were established for its improvement in the case of SC Advocates-on-Record Association v. Union of India AIR 2015 SCW 5457. Stakeholders were invited to provide their input on the matter, and based on the majority of suggestions received, changes were recommended. These changes focused on transparency, secretariat, defining eligibility criteria, complaints, and “Memorandum of Procedure” (MOP).

DISADVANTAGES OF COLLEGIUM SYSTEM

1. Lack of Transparency – The Collegium System operates behind closed doors, leading to a lack of transparency in the selection and appointment process of judges.
2. Potential for Bias – The system can lead to favouritism or nepotism, as there are no clear, objective criteria for evaluating candidates.
3. Limited Accountability – The decisions made by the Collegium are not subject to external review, reducing accountability and oversight in judicial appointments.
4. Concentration of Power – The system centralizes the power of judicial appointments within a small group of senior judges, which can undermine the principle of checks and balances.
5. Inconsistent Standards – Without standardized procedures, the selection criteria can vary significantly, leading to inconsistent standards in judicial appointments.
6. Exclusion of Executive Input – The Collegium System excludes the executive branch from the appointment process, which can lead to a lack of coordination and potential conflicts between the judiciary and the government.
7. Delay in Appointments – The process can be slow and cumbersome, leading to delays in filling judicial vacancies and contributing to the backlog of cases in the courts.

CONCLUSION

The difficulties in guaranteeing accountability, openness, and justice are shown by the development of the Indian judicial selection process from the Collegium System to the planned National Judicial selection Commission (NJAC). After the NJAC was declared unlawful by the Supreme Court, the Collegium System continues to be the accepted procedure, despite complaints about its lack of transparency and potential for bias. The court’s ruling highlighted the necessity of making adjustments to the current system rather than completely replacing it. Addressing the systemic flaws requires concerted efforts to improve openness, define qualifying requirements, and include larger stakeholders. To sum up, a strong and reliable judicial appointment process in India requires a balanced strategy that incorporates judicial independence together with the required checks and balances from other branches of government.

AUTHOR Vridhi Saini, a student at University Institute of Legal Studies, Panjab University, Chandigarh