Nowadays Collegium is a topic of debate. It’s a system where the Committee of Justices of Higher Courts sanctions and recommends an appointment of an Advocate/Justice of the High Court to a higher bench or apex bench of the Judiciary.

Which is under criticism. At present Collegium is a system that makes the appointment and recommends names to the President and Government of India.

 However, as a matter of academic interest let us see the background of this issue.

To draft the Constitution, a Constituent Assembly was constituted. In the said assembly the topic or article on the appointment of Judges to the higher judiciary amendments was discussed at length. Copy each of Part-1 and Part -2 of the Collegium discussion given below in the link.

The following are the relevant resolutions.

Proceedings before Constituent Assembly

Mr. President: The question is:

“That for clause (2) of article 103 the following be substituted:-

‘Every Judges of the Supreme Court shall be appointed by the President by warrant under his hand and seal and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge, other than the Chief Justice, the Chief Justice of India shall always be consulted.'”

The amendment was negatived.

“That in clause (4) of article 103, for the words ‘supported by not less than two-thirds of the members present and voting has been presented to the president by both Houses of Parliament ‘ the words ‘by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President’ be substituted.” The amendment was adopted.

Provision of Constitution: An evolution:

Provision of Constitution :

  1. Establishment and constitution of Supreme Court.—(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than [seven] other Judges.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal [on the recommendation of the National Judicial Appointments Commission referred to in article 124A]2  and shall hold office until he attains the age of sixty-five years:

3.[* * * * *]

4 [Provided that]—

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office in the manner provided

in clause (4).

5 [(2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.]

(3) A person shall not be qualified for appointment as a Judge of the Supreme Court, unless he is a citizen of India and— (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or

(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or (c) is, in the opinion of the President, a distinguished jurist.

Explanation I.—In this clause “High Court” means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.

Explanation II.—In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included.

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4).

(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.

______________________________________________________________________________________________

  1. Ins. by the Constitution (Thirty-eighth Amendment) Act, 1975, s. 2 (with retrospective effect) and omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 16 (w.e.f. 20-6-1979).Now “thirty-three” vide the Supreme Court (Number of Judges) Amendment Act, 2019 (37 of 2019), s. 2 (w.e.f. 9-8-2019). 2. Subs. by the Constitution (Ninety-ninth Amendment) Act, 2014, s. 2, for “after consultation withsuch of the Judges of the Supreme Court and of the High Court in the States as the President may deem necessary for the purpose” (w.e.f. 13-4-2015). This amendment has been struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and another Vs.Union of India in its judgment dated 16-10-2015, AIR 2016 SC 117. The first proviso was omitted by s. 2, ibid. (w.e.f.13-4-2015).The proviso was as under:—“Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:”. {This amendment has been struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and another Vs. Union of India in its judgment dated 16-10-2015, AIR 2016 SC 117. }Subs. by s. 2, ibid. for “provided further that” (w.e.f.13-4-2015).This amendment has been struck down by the Supreme Court in the Supreme Court Advocates-on-Record Association and another Vs Union of India judgment dated 16-10-2015, AIR 2016 SC 117. Inserted by the Constitution (Fifteenth Amendment) Act, 1963, s. 2 (w.e.f. 55. Ins. -10-1963

________________________________________________________________________________________________

1 [124A. National Judicial Appointments Commission.—(1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:— (a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of the Supreme Court next to the Chief Justice of India––Members, ex officio;

(c) the Union Minister in charge of Law and Justice––Member, ex officio;

(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People––Members: Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women: Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination.

(2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.

124B. Functions of Commission.––It shall be the duty of the National Judicial Appointments Commission to—

(a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts;

(b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and

(c) ensure that the person recommended is of ability and integrity.

124C. Power of Parliament to make law.––Parliament may, by law, regulate the procedure for the appointment of the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for an appointment and such other matters as may be considered necessary by it.]

__________________________________________________________________________________________________

  1. Ins. by the Constitution (Ninety-ninth Amendment) Act, 2014, s. 3 (w.e.f. 13-4-2015). This amendment has been struck down by the Supreme Court in the case of Supreme Court Advocates on-Record Association and another Vs Union of India in its judgment dated 16-10-2015, AIR 2016 SC

__________________________________________________________________________________________________

DICTUM:

PITH AND SUBSTANCE:

What is Pith and Substance?

The doctrine states that within their respective domains the state and the union legislatures are made supreme, they should not encroach upon the domains demarcated for the other.

 Union Of India vs Sankal Chand Himatlal Sheth

Note: This case is also known as the “mass transfers” of 16 Judges which were effected with “one stroke”, though each Judge may have bad peculiar personal difficulties to contend with, and considering that the Union of India had failed to disclose the “nature and content of the consultation” with the Chief Justice of India, the learned Judge concluded that the consultation was not meaningful. He set aside the order observing, that “the bead of the Judiciary does not appear to have taken into consideration all the relevant data when he was consulted and therefore, it is an inescapable conclusion …. that the transfer order for want of consultation as required by the Constitution is void”

It was, only during the emergency, when every safeguard of liberty had gone, that mass transfers of High   Court Judges were resorted to by the executive on grounds unconnected with the requirements of public interest.

Per Bhagwati J.

  1. When questions of great constitutional importance have been raised affecting the independence of the judiciary and argued with great passion and fervor in an appeal under Art. 136 of the Constitution, the Court ought to express its opinion on them, notwithstanding the fact that the appeal is disposed of in terms of the agreed formula arrived at between the parties at the close of the arguments. [457 D-E]
  2. Where the language of an enactment is plain and clear upon its face and by itself susceptible to only one meaning, then ordinarily that meaning would have to be given by the court. The words of a statute must be understood in the same sense which the Legislature has in view and their meaning must be found not so much in a strictly grammatical or etymological propriety of language nor in its popular use as in the subject or the occasion on which they are used and the object to be attained. The words used in a statute cannot be read in isolation; their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context.  Context means  in its  widest sense in not only other enacting provisions of the same statute but its preamble the existing state of  the law,  other  statutes  in  pari- materia  and  the  mischief which …. the statute was intended to remedy.” The context is  of the greatest importance in the interpretation of the words used in a statute. [467 E-H]

When the clauses of a Constitution to be construed are so cardinal as to affect the basic structure of the national charter viz. the independence of the judiciary, to dissect a constitutional provision meticulously as if it were a cadaver is to miss the life of the charter.  To change the metaphor,  then the arrow hits a mark  “the archer never meant”.  Words used designedly by trained draftsmen and authenticated by purposeful legislators must possess a mandate.[487 B 489 E]

Note: The above Judgement was passed after the emergency.

 DISSENT VIEWS WITHIN THE JUDICIARY:

 Justice V. R. Krishna Iyer, a celebrated jurist, criticized the collegium system in one of his articles published in The Hindu on 18 August 2012. He had said in his piece in a newspaper article:

 “Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own make the selection. There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails. In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone”.

Here is the link to the said Article

https://www.thehindu.com/opinion/lead/judicial-appointments-disappointments/article3785898.ece

 Justice Ruma Pal, on retirement in November 2011 described the process of appointment of judges to the superior courts as “possibly the best-kept secret of this country”. She had said, “Consensus within the collegium is sometimes resolved through a trade-off, resulting in dubious appointments with disastrous consequences for litigants and credibility of the judicial system. Besides, institutional independence has also been ..

Justice Chelameswar faced criticism from renowned lawyer Fali S Nariman who said, “If a judge in the collegium does not like the way it functions (for lack of transparency or any other), he can quit and then complain about why he quit. People would then understand him better.”

DICTUM:

Supreme Court of India  vs Union of India on 6 October 1993 (larger bench)

By and Order dated October 26, 1990 passed in Subhash Sharma and Ors. and Anr. Union of India (1990) 2 S.C.R. 433 and the matters connected therewith, the papers of Writ petition No. 1303 of 1987 – Supreme Court Advocates-on-Record Association and Anr. v. Union of India were directed to be placed before the learned Chief Justice of India for constituting a Bench of nine Judges to examine the two questions referred therein, namely, the position of the Chief Justice of India with reference to primacy, and justiciability of fixation of Judge strength. That Order was made since the referring Bench was of the opinion, that the correctness of the majority view in S.P. Gupta and Ors. etc. etc. v. Union of India and Ors. etc. etc. (1982) 2 SCR 365 : (AIR 1982 SC 149), required reconsideration by a larger Bench. This is how these questions arise for decision by this Bench.

It was concluded as under:

  1. On the basis of the reasoning and discussion on various issues, we conclude and hold as under:
  2. Article 124(2) and 217(1) of the Constitution of India impose a mandate on the highest functionaries drawn from the Executive and the Judiciary to perform the constitutional obligation – of making appointments of Judges to the Supreme Court and the High Courts – collectively in consultation with each other. In the event of disagreement in the process of consultation, the viewpoint of the Judiciary being primal, has to be preferred.
  3. The majority view in S.P. Gupta’s case (supra) – giving primacy to the Central Government in the matter of appointment of Judges to the superior courts – does not lay down correct law and is over-ruled to that extent.
  4. The expression “President” in Articles 124(2) and 217(1) when read with Article 74(1) makes the President to act on the advice of the Council of Ministers with the Prime Minister as the head. The Prime Minister and the Council of Ministers are bound to tender the advice in accordance with the interpretation given by this Court to Articles 124(2) and 217(1) of the Constitution of India.
  5. The Process of consultation under Article 124(2) means consultation with the Chief Justice of India as head of the Judiciary. The opinion of the Chief Justice of India is not his individual but formed collectively by a body of men at the apex level of the Judiciary. Such collectivity shall consist of the Chief Justice of India, two senior-most Judges of the Supreme Court and the senior Supreme Court Judge who comes from the State.
  6. The Process of appointment under Article 217(1) is to begin with the recommendation of the Chief Justice of the High Court. He must ascertain the views of the two senior-most Judges of the High Court and incorporate the same in his recommendation. The Chief Justice of India while examining the recommendation must take into account the views of two senior-most Judges of the Supreme Court and also the opinion of the senior Judge conversant with the affairs of the concerned High Court.
  7. The opinion of the Chief Justice of India, forwarded in the manner indicated above, shall be primal. No appointment can be made by the President under Articles 124(2) and 217(1) of the Constitution unless it is in conformity with the opinion of the Chief Justice of India.
  8. The Chief Justice of India shall be appointed on the basis of “selection by merit” and “seniority alone” rule shall not be applicable.
  9. The appointment to the Supreme Court shall be by “selection on merit”. Inter-se seniority amongst Judges in their respective High Courts has to be kept in view while considering the Judges for elevation to the Supreme Court. The combined seniority on all India basis shall be relevant in the process of consideration. The outweighing factor of merit would justify the elevation of a junior Judge from the same High Court.
  10. The Executive may not appoint a recommendee of the Judiciary if considered unsuitable for good reasons based on the material available on record and placed before-the Chief Justice of India. However, if after due consideration the recommendation is reiterated by the Chief Justice of India with the unanimous agreement of other judicial consultees then the Executive is bound by the recommendation.
  11. A Chief Justice/Justice may be transferred from one High Court to another – Article 222 – in public interest. A transferred Chief Justice/Judge can he transferred again and the power is not exhausted after the first transfer. The consent of the Chief Justice/Judge concerned is not required under the Constitution. S.P. Gupta’s case stands overruled to the extent.
  12. A proposal for transfer of a Chief Justice/Judge under Article 222 has to be initiated by the Chief Justice Justice of India and the ultimate recommendation in that respect is binding on the Executive.
  13. The transfer of a Chief Justice/Judge is not justiciable in the court of law except on the ground that the transfer was made without the recommendation of the Chief Justice of India.
  14. Fixation of Judge – Strength in the High courts is justiciable. The proposal made by the Chief Justice of a State for increasing the strength of the High Court, if it has the concurrence of the Chief Justice of India, is binding on the Executive. S.P. Gupta’s case overruled to the extent.

Dissenting View:

In the above judgment, the majority consisting of Justices JS Verma, Yogeshwar Dayal, GN Ray, Dr. AS Anand, and SP Bharucha with concurring separate judgments delivered by S. Pandian and Kuldip Singh, JJ, held that view in SP Gupta’s case insofar as the issue of “primacy” is concerned is overruled.

The minority consisting of Ahmadi and Punchhi, held that the executive had primacy over the opinion of the Chief Justice of India while on the matter of the fixation of judge strength, Punchhi did not express a view, Ahmadi, J concurred with Venkataramaiah, J in SP Gupta’s case allowing a limited mandamus to the issue.

Obiter on the issue:

Following are the three cases:

  1. P. Gupta v. Union of India – 1981 (also known as the Judges’ Transfer case)
  2. Supreme Court Advocates-on Record Association vs Union of India – 1993
  3. In re Special Reference 1 of 1998

Over the course of the three cases, the court evolved the principle of judicial independence to mean that no other branch of the state – including the legislature and the executive – would have any say in the appointment of judges. The court then created the collegium system, which has been in use since the judgment in the Second Judges Case  was issued in 1993. There is no mention of the collegium either in the original Constitution of India or in successive amendments.

The Third Judges Case of 1998 is not a case but an opinion delivered by the Supreme Court of India responding to a question of law regarding the collegium system, raised by then President of India K. R. Narayanan, in July 1998 under his constitutional powers.

Further, in January 2013, the court dismissed as without locus standi, a public interest litigation filed by NGO Suraz India Trust that sought to challenge the collegium system of appointment.

In July 2013, Chief Justice of India P. Sathasivam spoke against any attempts to change the collegium system.

On 5 September 2013, the Rajya Sabha passed The Constitution (120th Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of India, 1950 and establishes the National Judicial Appointments Commission, on whose recommendation the President would appoint judges to the higher judiciary.

The amendment was struck down by the Supreme Court for being unconstitutional on 16 October 2015. The constitutional bench of Justices J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice Chelameswar upheld it.

Conclusion:

Collegium is the law. But at the same time maker of the constitution had something else to lay down in the code. The recent speech of the Vice-President in the Upper House of Parliament reflects the concern of Parliament as a lawmaker and struck down of laws enacted by it which as lawmakers feel that the same is an encroachment of the power of parliament as lawmaker… Moreover, whether Collegium Law is in violation of pith and substance time will say.

At present, there is the highest pendency in court.

The execution of the decree and recovery of land and money is virtually impossible.

Certain laws like Insolvency and Bankruptcy Act 2016 are giving some respite but the property where Court Receiver is appointed is locked for decades.

Advocates advise clients not to apply for Probate unless there is express consent in writing from all the stakeholders else if anyone party files an objection the Probate application will be converted into a suit and the property will be locked in litigation. The real heir may have to share to get rid of litigation.

Trespassers and encroachers are protected under Article 300A and by merely filing an injunction application by paying Rs.1000/- court fees property becomes disputed property. They cannot be dispossessed without due process of law. There are incidents where such encroachers are either given plush flat or hefty compensation.

The system of collegium is an internal process and in layman’s language, 5 to 6 senior Judges of the Supreme Court in which the Chief Justice of India is the Chairperson scans through profiles or applications and makes a recommendation to the Law Ministry to appoint. Law Ministry has two options either to accept or with remarks return the file for reconsideration. On the second time recommendation Government has an option but to accept. Thereafter the proposal goes to the President for issue a writ of appointment. The entire process is time-consuming for sitting judges. This is the point where there is friction.

It is the stand of the government that in the first place Judge is appointing Judge is nowhere prevailing in the world. There is a need for an independent body or Commission to manage interviews training and appointment of Judges in higher judiciary. For example, UPSC and MPSC board appoint IAS and IPS.

Justice never sleeps but it waits. The waiting period for “justice” is decades. This is not justice and if this is the case we all should relook at the mistakes we made and correct them for the betterment of society at large.

My Twitter handle :

Suggestions :

  1. A readable Thread by @aakuraj Says #WeRequestModiGovt 28 let us make judici – UnrollThread.com
  2. A readable Thread by @aakuraj Says @narendramodi @rsprasad @indSupremeCourt – UnrollThread.com

 

Law Profession, not a business:

The law profession is not a business but a humble profession for social good. This is the reason why the lawyers cannot advertise in India nor has a lien on papers for outstanding bills. But one thing is lawyers also run office, a house gives employment, etc. We need to relook at all the provisions because it’s no more just a humble profession but an expensive affair which is also one of the reasons despite pending cases people avoid approaching the courts.

My Twitter handle:

https://twitter.com/AdvShrutidesai/status/1028156606335279109?s=20&t=W9TX1J8tgiqSROv_RFWjbQ

13th December 2022

Edited on

19th December 2022

 

SHRUTI DESAI