We all know that the Collegium model is followed in the appointment of judges of the Supreme Court and High Court in India. However, the Constitution of India did not provide for the collegium model for the appointment of judges, and neither is it backed by legislation by the Parliament, which indeed raises certain skepticism about its validity. So, in this article, we’d be discussing how the Collegium model emerged for the appointment of judges and how the historic three judges case played a decisive role in it.
Independence of Judiciary
The independence of the judiciary is indeed the most important prerequisite for the functioning of a free and democratic society and without an independent judiciary, society would ultimately dwell into tyranny. Our Constitution framers were very well aware of this and made every effort possible to ensure that the Judiciary remains independent of the executive and legislative.
The Indian Constitution provides various safeguards to ensure an independent judiciary, such as:
- Security of tenure of the judges: the judges can be removed from the office only on grounds of proven misbehavior or incapacity, through impeachment.
- The process of removal of judges: the process of impeachment of judges of the Supreme Court and High Court is very difficult and requires a special majority of both the houses of parliament.
- No discussion shall take place in the Parliament and State Legislative Assemblies regarding the conduct of judges unless a motion of impeachment is moved against them.
- The Judiciary is made financially independent of the Legislature and Executive: The salaries and allowances of the judges are fixed and not subject to vote by the legislature. The judges of the Supreme Court derive their salaries from the consolidated fund of India, and the judges of the High Court derive their salaries from the consolidated fund of the State. Moreover, their emoluments cannot be altered to their disadvantage except in event of a financial emergency.
- The Supreme Court of India is authorized to have its own establishment and to have complete control over it. It is further authorized to make appointments of staff and officers of the court and determine their service conditions.
Importance of an independent judiciary
Judiciary’s independence is linked to its role as a watchdog in a democracy. It monitors and maintains the checks and balances over the other arms of the government. Thus, the judiciary emerges as the mediator when any organ of the government exercises ‘excess power’ which tends to violate the larger societal or individual interest.
In order to ensure that the constitutionally guaranteed freedoms such as the freedom to speak in public or the freedom to peacefully assemble, are interpreted as per the true constitutional philosophy, the judiciary has been kept free from any external pressures.
Judiciary acts as a guardian of fundamental rights which are constitutionally granted to every citizen of India. Independence of the Judiciary was carved out during the formation of the Indian Constitution as India was transitioning from a feudal to a democratic order. It was done to fully translate the well-knit provisions of extensive rights guaranteed under the Constitution into the lives of average citizens.
Constitutional Mandate regarding the appointment of Judges of S.C. and H.C.
The Collegium Model of appointment of judges emerged after the three judges case, which means it is not constitutionally mandated and is derived from judicial precedents. So, what does the Constitution of India mandate for the appointment of judges of the Supreme Court and High Court?
Article 124: Appointment of Supreme Court Judges
According to Article 124 of the Indian Constitution, ‘every judge of the Supreme Court shall be appointed by the President after consultations with such of the judges of the Supreme Court and of the High Courts in the States, as the President may deem necessary.’ The article also provides that in the case of appointment of a judge other than the Chief Justice of India, the Chief Justice must be consulted. The Article further provides the qualifications required to become a judge of the Supreme Court, these include:
- citizenship of India
- has been for at least five years a judge of a High Court or of two or more High Courts in succession; or
- has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
- Is a distinguished jurist in the opinion of the President
Article 217: Appointment of High Court Judges
Article 217 provides that every judge of the High Court should be appointed by the President after consultation with the Chief Justice of India, the Governor of the State; and in case of appointment of a judge other than the Chief Justice, the Chief Justice of the Hiigh Court concerned. The qualifications of a High Court judge include:
- Citizenship of India, and
- Has for at least ten years held a judicial office in India; or
- Has for at least ten years been an advocate in a High Court or two or more such Courts in succession.
(Click here to read about the Subordinate Courts in India )
The Three Judges Case: Confusion and debate on the issue of appointment of judges
The issue of the appointment of judges has often been linked to the independence of the judiciary and there has been a constant tussle between the executive and judiciary over the appointment of judges. As early as the 14th Law Commission report under the leadership of M.C. Setalvad, India’s first Attorney General in 1958, these concerns were raised. The report highlighted that several appointments are being made on political, regional, communal, or other grounds as a result of which the fittest of the lot were never appointed. The Commission thus suggested strengthening the process of consultation between the executive and the judiciary
The Case and the different interpretations of the word ‘consultation’
A series of three judicial decisions popularly known as the three judges case helped in the development of the modern collegium system. This development has been a result of a tumultuous process but in modern practice, governs the rule for judicial appointments. The Supreme Court has given three different interpretations of the word ‘consultation’ in the three judges case.
First Judges Case
The first judges case took place in 1981, in the case, the Supreme Court gave primacy to the executive in the matters of appointment of judges and held that the Chief Justice’s recommendation can be refused by the President for cogent reasons. It gave vast powers to the executive for the next 12 years in making judicial appointments.
Second Judges Case
The Second Judges case took place in 1993, in this case, the decision of the first judges case was modified. The Court held that the Chief Justice of India has primacy in the matter of appointments to the Supreme Court and High Courts, and that an appointment ‘has to be in conformity with the final opinion of the Chief Justice of India while emphasizing the desirability of consultation of the Chief Justice with other judges. The executive process in the appointment process was reduced to a minimum and political influence was eliminated. This decision was rendered by a nine-judge bench was supported only by five judges on the bench and four judges did not concur with the majority opinion.
The years that followed thus witnessed some confusion in the process of appointments as the CJI made some unilateral appointments and the role of president was reduced to a mere approval.
Third Judges Case
The Third Judges Case took place in 1998. In this case, the Supreme Court in a Presidential Reference (1998 advisory decision) emphasized the role of consultation and held that the process of appointment of judges to the Supreme Court and High Courts is an ‘integrated participatory consultative process.’ The Chief Justice of India firms up his opinion after consultation with a plurality of judges; his opinion is formed by a body of senior judges.
Thus, after the tumultuous process and the three judges case, the present-day Collegium model for the appointment of judges to the Supreme Court and High Court was introduced and is followed to date.
The Collegium Model
At present, the appointment of judges of the Supreme Court and High Court follows a collegium model, which, as discussed earlier, is a judicial creation through case laws, and is not constitutionally mandated.
Under the collegium model for the appointment of judges of the Supreme Court, the Chief Justice of India consults four senior-most judges of the Supreme Court. The Chief Justice of India sends his recommendations to the Union Minister of Law and Justice, who then puts up the same to the Prime Minister. The Prime Minister will then advise the President.
For High Courts, the collegium comprises the Chief Justice of the High Court and two senior-most judges of the High Court. The Chief Justice of the High Court conveys his recommendation to the Chief Minister of the State and the Governor of the State, who in turn sends their views directly to the Union Minister of Law and Justice. The Union Minister of Law and Justice then puts up the same to the Prime Minister who will advise the President in the matter of appointment.
The seniority of judges plays an important role in his/her elevation or appointment as Chief Justice. For initial appointment as a Judge in High Court for those from the lower judiciary inter-seniority does matter; and for the elevation of advocates from the bar, relative merit matters. The Collegium model considers the relative merits of those Judges/Advocates in the zone of consideration for elevation with reference to their judgments and cases.
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