In India, the judges of the Supreme Court and High Courts are appointed and transferred on the recommendation of the Collegium system. However, this collegium has no place in the Indian Constitution.
The present form of the Collegium system was evolved by the Supreme Court through three different judgments. They are:
S. P. Gupta v. President of India and others (1981); Advocate practising on Record Association v. Union of India (1993) and Special Reference case (1998)
These three are collectively known as “Three Judges cases.
BACKGROUND
On 18th March 1981, Shri Shiv Shankar, the then Law Minister of India, issued a circular addressed to the Governor of Punjab and the Chief Ministers of the other states.
The objective of the circular was to further national integration and to combat narrow tendencies bred by caste, kinship and other local links and affiliations. To achieve this, the circular suggested that one-third of the Judges of the High Court should, as far as possible, be from outside the state in which that High Court is situated.
However, the circular generated heated controversy. Several resolutions were passed by bar associations across the country condemning the circular letter as subversive of judicial independence and asking the Government of India to withdraw the circular letter.
Eight writ petitions were filed in different High Courts across the country, challenging the constitutional validity of the circular, a practice followed by the Central Government in appointing additional Judges in various High Courts, and the transfer of judges of the High Courts.
S.P. Gupta was an advocate practising in the High Court of Allahabad and one of the petitioners in the case. In the petition filed in the Bombay High Court, the Law Minister of India was respondent No. 1, and the Government of India was respondent No. 2. Both of them filed a Transfer Petition for the transfer of the writ petitions from the Bombay High Court to the Supreme Court under Article 139A of the Constitution.
Other petitions were withdrawn and transferred to itself by the Supreme That is how these writ petitions came up for hearing before the seven Judges Bench of the Supreme Court. Upon hearing the arguments, they declared that the “primacy” of the CJI’s recommendation on judicial appointments and transfers can be refused for ‘cogent reasons’. The ruling gave the Executive primacy over the judiciary, which itself is a basic feature of the Constitution as held in the Keshavananda Bharati case.
In 1993, again, writ petitions were filed in the Supreme Court for filling the vacancies in the higher Judiciary. This writ petition brought into reconsideration the controversial judgment in the S. P. Gupta case. This is known as the Supreme Court Advocates on Record Association v. Union of India or the Second Judges Case. The case considered two questions:
1. The primacy of the opinion of the Chief Justice of India (C) about the appointments of Judges to the Supreme Court and the High Court, and about the transfers of High Court Judges/ Chief Justices, and
2. Justiciability of these matters, including the matter of fixation of the Judge strength in the High Courts.
In the Second Judges case, the Supreme Court held that “In the matters of appointment and transfers of Judges, the role of the Chief Justice of India is primary in nature. The Chief Justice of India must take into account the views of two senior-most Judges of the Supreme Court….”
However, doubts arose about the interpretation of the law laid down by the Supreme Court. The President was reduced to only an approver. Therefore, exercising his power under Article 143 of the Constitution of India, the President of India made a special reference to the Supreme Court in 1998.
ARGUMENTS IN S. P. GUPTA CASE
The petitioners challenged the validity of the circular letter, which required the additional Judges of High Courts to give their consent for being appointed as Judges outside the state. They argued that such consent in advance would reduce the consultation with the CJI, the Chief Justice of the High Court and the Governor of the state to an illusory and empty formality.
They contended that the circular letter held out a veiled threat to the additional Judges that if they do not consent to their appointment as Judges in a High Court other than their own, they may not be appointed as permanent Judges at all and may be dropped on the expiration of their term of office. It was argued that to require a person whose name is to be recommended for initial appointment as a Judge to give her/his consent for being appointed as a Judge in another High Court would be to introduce an irrelevant qualification for the appointment of a Judge.
On the other hand, the respondents contended that the petitioners have no locus standi in the case. It was argued that the transfer of a Judge from one High Court to another results in the vacation of his office. And therefore must be construed to be a fresh appointment. In other words, he could be transferred only if he gives his consent, as when he was first appointed to the High Court. It was argued that it is not possible for a person to function as a Judge unless the Oath is operative. If a transferred Judge has to take a fresh oath, then it is urged that the order of transfer would become a fresh appointment for which his consent would be required by necessary implication, as it is necessary in the case of the first appointment under Article 217(1).
THE JUDGMENT IN S. P. GUPTA CASE
While allowing the Writ Petitions, the Supreme Court quashed and struck down the Circular letter dated 18 March 1981 as impinging on judicial independence and as being violative of Articles 222(1) and 14.
The Supreme Court gave a literal meaning to the word ‘consultation’ appearing in Articles 124 and 217 of the Constitution. The Court took the view that the opinion of the CJI is merely consultative and the final decision in the matter of appointment of judges is left to the Executive.
ARGUMENTS IN ADVOCATE ON RECORD ASSOCIATION CASE
Petitioners submitted that the S. P. Gupta case paid no attention to the mandate of Article 50 and its implications and effect on the interpretation of Articles 124 and 217. Article 50 is the culmination of a long, drawn-out movement and struggle for judicial independence. Petitioners submitted that to save the basic feature of Independence of Judiciary, the court, through its decision, must construe the word ‘Consultation’ as equivalent to ‘Concurrence’.
On the other hand, the Union of India argued that Article 50 cannot be availed of for the appointment of Judges to the Supreme Court and High Courts, especially in the context of independence of the judiciary. It was contended that if the primacy is given to the opinion of the Chief Justice expressed during the consultation, then Article 124(2) will become redundant.
The Constitution provides several safeguards for the independence of the Judiciary. Therefore, the Parliament or Executive can neither impair the Independence of the Judiciary, which is the basic structure of the Constitution, nor can they make an amendment in these constitutional provisions.
THE JUDGMENT IN THE ADVOCATE ON RECORD ASSOCIATION CASE
The nine-judge bench of the Supreme Court overruled the S. P. Gupta judgment.
It held that, ‘in issues regarding the appointment of judges in higher judiciary, the opinion of CJI must be given primacy to minimise the executive influence in the judicial functions’.
The court expanded the scope of the word ‘Consultation’ by construing it in equivalent terms with ‘Concurrence’.
The Supreme Court held that ‘In the matters of appointment and transfers of Judges, the role of the Chief Justice of India is primary in nature. The Chief Justice of India must take into account the views of two senior-most Judges of the Supreme Court…’
CONSTITUTIONAL QUESTIONS ASKED IN SPECIAL REFERENCE CASE OF 1998
Exercising his power under Article 143 of the Constitution of India, the President of India referred the following questions to the Supreme Court:
1. Whether the expression ‘consultation with the Chief Justice of India’ in Articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the opinion of the CJI, or does the sole individual opinion of the CJI constitute consultation within the meaning of the said Articles?
2. Whether the transfer of judges is judicially reviewable in light of the observation of the Supreme Court in the Advocate on Record Association case?
3. Whether Article 124(2) requires the CJI to consult only the two senior-most Judges or whether there should be wider consultation according to past practice?
4. Whether the CJI is entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of all materials and information conveyed by the Government of India for non-appointment of a judge recommended for an appointment?
5. Whether the requirement of consultation by the CJI with his colleagues, who are likely to be conversant with the affairs of the High Court as a parent High Court and excludes Judges who are concerned High Court, refers to only those Judges who have that hat occupied he office of a Judge or Chief Justice of that Court on transfer?
6. Whether any recommendations made by the CJI without the norms and consultation process are binding upon the Government of India?
THE JUDGMENT IN THE SPECIAL REFERENCE CASE OF 1998
The Supreme Court held that:
1. The expression ‘consultation with the Chief Justice of India’ in Article 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute ‘consultation’ within the meaning of the said Articles.
2. The transfer of Judges is judicially reviewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has not been made in consultation with the four senior-most Judges of the Supreme Court and/or that the views of the Chief Justices of the concerned High Courts have not been obtained.
3. The CJI must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or Judge of a High Court in consultation with the four senior-most Judges of the Supreme recommendation must be made in consultation with the two senior most Judges of the Supreme Court.
4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for the non-appointment of a judge recommended
5. The requirement of consultation by the Chief Justice of India for appointment. His colleagues who are likely to be conversant with the affairs of the concerned High Court do not refer only to those Judges who have that High Court as a parent High Court. It does not exclude judges who have occupied the office of a judge or Chief Justice of that Court on transfer.
6. The views of the Judges consulted should be in writing and should be conveyed to the Government of India by the Chief Justice of India, along with his views to the extent set out in the body of this opinion.
7. The Chief Justice of India is obliged to comply with the norms and the requirements of the consultation process in making his recommendations to the Government of India.
8. Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process are not binding upon the Government of India.
IMPORTANCE
Through these cases, by a process of ‘judicial invention’, the ‘collegium’ system for the appointment of judges came into existence.
IMPACT
Doubts are raised that even the collegium of judges are prone to irrelevant considerations in the matter of selection and more so in the non-selection of meritorious judges to the Supreme Court, For example, non-elevation of justice A P. Shah and Justice U. L Bhatt to the Supreme Court are cited as instances of prejudice and unfairness The collegium system has been accused of lack of transparency and allegations of unfairness. To correct this, the Government of India introduced the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment. However, they were declared unconstitutional by the Supreme Court as they compromise judicial independence. So, the old collegium system continues.