By Ritwik Sharma
The recent decision of the Supreme Court Collegium to transfer the Chief Justice of the Madras High Court to the Meghalaya High Court has once again put the Collegium system under the scanner.[1] Justice Tahilramani’s transfer from the Madras High Court which houses 75 judges and covers 32 districts including the Union Territory of Puducherry to the Meghalaya High Court which houses only 3 judges and covers only 7 districts has come as a rude shock since she was the senior-most High Court judge in the country before tendering her resignation in protest.[2] Although the official reasons behind her transfer have not yet been disclosed but there have claims of judicial inefficiency behind her demotion from a big High Court to a small High Court.[3]
The entire controversy surrounding the transfer of Justice Tahilramani has once again raised eyebrows regarding the efficacy and transparency of the Collegium system.
The Turbulent 70s: Origin of the Collegium system
The position of the Supreme Court judges came under jeopardy after a string of landmark judgments in the 1970s were not appreciated by the government. Since the executive was empowered to appoint judges including the Chief Justice, a lot of junior judges ended up superseding their seniors.[4] Justice A.N. Ray, despite being fourth in seniority, became the Chief Justice in 1973 superseding three of his seniors because of their stance in the Keshvananda Bharti judgment. All the senior judges namely Justice J.M Shelat, Justice K.S. Hegde and Justice A.N. Grover resigned in protest. Later in 1977, Justice M.H. Beg superseded Justice H.R. Khanna who gave a dissenting vote in the ADM Jabalpur judgment.[5] Justice Khanna, too, resigned in protest.
These instances threatened to break the independence and autonomy of the judiciary since the executive had arbitrarily tightened its leash. However, it is important to note that the practice of executive appointing the judicial officers is an age-old practice which has been followed in countries like the United States etc.[6]
In 1982, a PIL was filed before the Supreme Court challenging the appointment of judges by the executive. The Supreme Court noted that the term consultation mentioned under Article 124(4) and 217(1) of the Indian Constitution does not amount to concurrence and therefore, the President is not bound by the advice tendered by the Chief Justice in the appointment of the judges to the Supreme Court. This case later came to be known as the First Judges Case.[7]
However, in 1993 the Supreme Court overturned its 1982 ruling in the First Judges Case by declaring that the term consultation mentioned under Article 124(4) and 217(1) does amount to concurrence and hence, the President is bound by the advice tendered by the Chief Justice but the advice tendered by the Chief Justice must be supported by two his senior-most colleagues. Therefore, the concept of the Collegium system was introduced for the first time. Moreover, the Court also held that the practice of appointing the senior-most judge of the Supreme Court as the Chief Justice would resume after it was violated twice in the 1970s. This case later came to be known as the Second Judges Case.[8]
In 1998, a Presidential Reference was forwarded to the Supreme Court under Article 143 to evaluate the efficacy of the Collegium system. The Supreme Court, while confirming its 1992 stance, opined that the consultation process must require the opinion of the plurality of judges. The Court stated that the sole advice of the Chief Justice while recommending appointment and transfers would not stand unless it is supported by four of his senior-most colleagues. The Court further noted that even if two of the judges are showing any reservation regarding the appointment/transfer the Chief Justice should not send the recommendation to the President. This case was called the Third Judges Case.[9]
In 2014, the Indian Parliament passed the 99th Constitutional Amendment Act to add Article 124A to the Indian Constitution. This came to be known as the National Judicial Appointment Commission Act. The Parliament passed this Act to restore the old practice of appointment of judges by the executive. The NJAC was constituted with Chief Justice being the ex-officio Chairman along with two of his senior-most colleagues and the Law Minister as the ex-officio member with two eminent persons completing the six-member body. However, the Supreme Court in 2015 struck down the 99th Constitutional Amendment claiming that NJAC Act threatens the independence of judiciary which forms the basic structure of the Constitution and subsequently restored the Collegium system.[10]
Time to rethink?
India is one of the very few countries in the world where the Collegium system exists. The conventional practice of executive appointing the judges still exists in the western democracies. However, the Collegium system has come under a lot of scrutiny over the years regarding the manner in which judges are elevated and transferred. There is no doubt about the independence of the Indian Judiciary but its transparency and accountability have been nothing but sketchy in the last few years. Unsubstantiated claims of nepotism and judges voicing their concerns regarding the internal administration have not helped either. The decision to elevate Justice Sanjiv Khanna[11], who was 33rd in seniority across the High Courts, was also questioned by the press and the government. The demotion and the subsequent resignation of the Justice Tahilramani clearly show that the Collegium system is slowly running out of time.[12]
The Way Ahead
It is evident that the existing system is anything but transparent. The NJAC Act was struck down by the Supreme Court stating that independence of the judiciary is fundamental to democracy but so are checks and balances. The NJAC Act wasn’t a draconian provision by any means. Instead, it provided a platform to the executive to counter the dominance of the judiciary in appointment of judges.
The Supreme Court collegium must mandatorily publish suitable reasons behind elevation and/or transfer of judges from one High Court to the other. Special reasons must be provided in case a transfer is from a big High Court to a relatively small High Court, like in the case of Justice Tahilramani.
Moreover, a Commission on the lines of the NJAC comprising of the Chief Justice, two of his senior-most colleagues, the Lokpal and the Law Secretary/Minister could be set up in order to make the process more transparent. Sections 5(2) and 6(6) of the erstwhile NJAC Act stated appointment of Supreme Court and High Court judges respectively should not be made if two members of the commission veto it. However, such a scheme would paralyze the appointment procedure and would create friction between the executive and the judiciary. The proposed Commission should function on the basis of majority vote instead of consensus in order to maintain judicial supremacy. This system would provide requisite safeguards to the Supreme Court (three of the five members being SC judges) and would allow the Ombudsman (Lokpal) to raise concern regarding any mischievous appointment/transfer.
Finally, the independence of judiciary forms the bedrock of democracy but independence without transparency and accountability slowly turns into tyranny and such a scenario must be avoided at all costs.
[1] Krishnadas Rajgopal, Why is the Collegium of Supreme Court judges under the spotlight?, The Hindu, available at https://www.thehindu.com/news/national/why-is-the-collegium-of-judges-in-the-spotlight/article29418574.ece, (September 15, 2019).
[2] Press Trust of India, Madras HC Chief Justice VK Tahilramani resigns after SC refuses to stop transfer, India Today, available at https://www.indiatoday.in/india/story/madras-hc-chief-justice-vk-tahilramani-resigns-sc-refuses-stop-transfer-1596619-2019-09-07, (September 7, 2019).
[3] Sanyukta Dharmadhikari, Justice Tahilramani transferred for inefficiency writes Justice Katju, sparks debate, The News Minute, available at https://www.thenewsminute.com/article/justice-tahilramani-transferred-inefficiency-writes-justice-katju-sparks-debate-108813, (September 13, 2019).
[4] PTI, Two hours given to Justice AN Ray to decide on CJI post?, Economic Times, available at https://economictimes.indiatimes.com/news/politics-and-nation/two-hours-given-to-justice-a-n-ray-to-decide-on-cji-post/articleshow/65007659.cms, (July 16, 2018).
[5] PTI, ‘Black day, historic blunder’: Former HC judge writes to President on Collegium’s picks for SC, News 18, available at https://www.news18.com/news/india/black-day-historic-blunder-former-hc-judge-writes-to-president-on-collegiums-picks-for-sc-2004163.html, (January 16, 2018).
[6] Cheung Wai Lam, The Process of Appointment of Judges in Some Foreign Countries: The United States (Report submitted to Honk Kong Panel on Administration of Justice and Legal Services on November 22, 2000), p.3, available at https://www.legco.gov.hk/yr00-01/english/library/erp01.pdf.
[7] S.P. Gupta vs Union of India, AIR 1982 SC 149.
[8] Supreme Court Advocates-on-Record Association vs Union of India, AIR 1994 SC 268.
[9] In Re: Presidential Reference of October 28, 1998, AIR 1999 SC 1.
[10] Supreme Court Advocates-on-Record Association v. Union of India, (2015) 5 SCC 1.
[11] Ashok Bagriya, Why Supreme Court Collegium elevated Justice Sanjiv Khanna, Hindustan Times, available at https://www.hindustantimes.com/india-news/cji-succession-line-key-to-justice-sanjiv-khanna-s-elevation/story-5tOCtBTNu7iWJFVlMMIEmM.html, (January 22, 2019).
[12] Varun Sukumar, Justice Tahilramani: The case of an arbitrary transfer, Sify News, available at https://www.sify.com/news/justice-tahilramani-the-case-of-an-arbitrary-transfer-news-columns-tjnqv2fbcegfh.html, (September 13, 2019).
The Journal of Indian Law and Society 