On December 12, 2018 the names of the Rajasthan High Court Chief Justice Pradeep Nandrajog, and Delhi High Court Chief Justice Rajendra Menon were considered for elevation to the Supreme Court of India by the collegium of which (Hon) Justice Madan B Lokur was part. After the retirement of (Hon) Justice Madan B Lokur, the new collegium again met on January 05-06, 2019 and decided that it would be appropriate to look at aforesaid recommendation for elevation afresh on account of surfacing of some additional material. Finally, the new collegium recommended the names of (Hon) Justice Dinesh Maheshwari (he had been superseded earlier, now found to be more suitable and deserving in all respects than any other Judges and Chief Justices of High courts) and (Hon) Justice Sanjiv Khanna in place of earlier recommendation by the earlier collegium. This development sent some uncomfortable ripples through, and brought the opacity in working of collegium system under the spotlight. Further, it has brought forth some pertinent issues:
- Can the retirement of one of the judge who is part of the collegium be a ground to withdraw a considered recommendation;
- Though seniority need not be the sole criterion but the elevation of two junior judges in the light of aforesaid context is appropriate?
Let us turn the clock back and trace the history of collegium system.
Provisions of Constitution of India for the appointment of Judges in the Supreme Court and the High Courts
“Every Judge of the Supreme Court shall be appointed by the President… after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary… the Chief Justice of India shall always be consulted”
“Every Judge of a High Court shall be appointed by the President … after consultation with the Chief Justice of India, the Governor of the State… the Chief Justice of the High Court”
Hence, the Constitutional provisions are not clear about the procedure for the appointment of Judges!
Mutation of the word “Consultation” into “Concurrence”
In 1977, in Sankal Chand Sheth case, while interpreting the word “consultation”, the Supreme Court said that the term can never mean “concurrence”. Hence, the CJI’s opinion, the court ruled, was not binding on the executive. But nonetheless, the executive could depart from his opinion only in exceptional circumstances. In such cases, its decision could well be subject to the rigors of judicial review. In 1981, the Supreme Court once again endorsed this interpretation, albeit partly as in S P Gupta case (December 30, 1981) popularly called the as “First Judges Case”. It declared that In the Second Judges Case (Supreme Court Advocate-on record Association v. UOI), the Supreme Court overruled its earlier decisions. It held primarily “consultation” really means “concurrence”. CJI’s view enjoys primacy, since he is “best equipped to know and assess the worth” of the candidates. But, the Chief Justice of India, in turn, was to formulate his opinion through a body of senior judges that the court described the Collegium.
In 1998 in the third judges case (In re Special Reference 1 of 1998) the Supreme Court clarified its position further. It said that the Collegium will comprise, in the case of appointment to the Supreme Court, the CJI and his four senior-most colleagues and in the case of appointments to the High Courts, the CJI and his two senior-most colleagues. Additionally, for appointments to the High Courts, the Collegium must consult such other senior judges serving in the Supreme Court, who had previously served as judges of the High Court concerned.
The Judgment, however, is silent on whether the views of the consultee – judges are binding on the Collegium or not And, when the 99th constitutional amendment was passed which sought to replace collegium by the National Judicial Appointments Commission, a body comprising members of the judiciary, the executive and the general public, the Supreme Court swiftly struck it down and what we might now call this as the Fourth Judges Case (2015) on the ground that the primacy of the Collegium is a part of the Constitution’s basic structure, and this power could not, therefore, be removed even through a Constitutional Amendment. But looking at the hostility that the system was facing, the judgment also promised to consider introduction of appropriate measures to improve the “Collegium System”.
Be that as it may, the problem which issue that we are confronting is, as Justice P.N. Bhagwati stated, “Collegium is a sacred ritual, whose mystery is confined only to a handful of high priests”. Therefore, the lack of written manual for functioning, absence of selection criteria, arbitrary reversal of decisions already taken, selective publication of records of meetings, all point to the fact that Collegium is not only as opaque as it was, it may perhaps have become worse.