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Full blast on judge selection

RM Lodha

New Delhi, Aug. 11: India’s top judge today slammed the “canard” being spread against the collegium system of judges’ appointment hours before the Centre moved to abolish the judiciary-driven system in favour of a more executive-friendly one.

“We are all products of the collegium,” Chief Justice of India R.M. Lodha said at a petition’s hearing. “If the product has failed, everything else has failed in this country. We can’t help it.”

Shortly afterwards, the Centre introduced two bills in the Lok Sabha, one of them a constitutional amendment bill, seeking to replace the judges-only collegium (panel) with a judicial appointments commission that would give the government more say in judges’ appointments and transfers. (see below)

Justice Lodha specifically mentioned the media as he criticised the growing attacks on the collegium, whose recommendations are now binding on the Union government.

“There is a campaign and canard going on in the media that the collegium system has failed. You are defaming the judiciary and showing disrespect,” he said.

“Don’t shake the confidence of the people in the judiciary by saying the collegium system has failed. I was the first appointment of the collegium. Mr (R.F.) Nariman is the last appointment if… (the collegium gets abolished).”

Justice Nariman and Justice Kurien Joseph were the other members of the bench.

A collegium of three to five apex court judges headed by the Chief Justice of India (CJI) now picks all the Supreme Court and high court judges in consultation with the Centre, whose objections it can overrule,

The proposed commission to replace it will include the CJI and two other senior-most apex court judges as well as the Union law minister and two eminent citizens. The last two will be picked by a three-member panel of the Prime Minister, CJI and the leader of the Lok Sabha Opposition or the leader of the largest Opposition party in the House.

Any two members of the appointments commission can veto any candidate, so the decisions have to be unanimous or 5-1. If the government returns a recommendation for reconsideration, the commission can send it back only with a unanimous decision.

The government moved the National Judicial Appointments Commission Bill, 2014, which contains details of the commission’s composition, functions and procedures, after withdrawing a related bill introduced by the erstwhile UPA government that got stuck in the Rajya Sabha.

The Constitution (121st Amendment) Bill, 2014, will make the commission a part of the Constitution to serve two purposes:

Allay any fears on the judiciary’s part by ensuring a future government cannot tweak the commission’s composition through an ordinary legislation;

Provide a cushion of sorts against litigation, though the proposed law itself will not be immune from judicial review. A nine-judge Constitution bench had in 1992 ruled that the judiciary had primacy in judges’ appointments to ensure their independence.

The constitution bill needs a two-thirds majority in each House and the other bill a simple majority. They are likely to be put to vote together.

The two eminent citizens will have three-year tenures and cannot be re-nominated. One of them must be from a Scheduled Caste, Scheduled Tribe, Other Backward Class or minority community or be a woman.

Justice Lodha’s comments today came as the bench he headed dismissed a public interest litigation questioning an alleged collegium decision to elevate Justice K.L. Manjunath of Karnataka High Court as chief justice of Punjab and Haryana High Court.

The petitioner’s counsel, R.V. Kameswaran, had pleaded that a bench that did not include any collegium members should hear the petition.

“You want the matter heard by a bench who are not part of the collegium? Except the collegium, nobody knows whether the name (Manjunath) has been recommended as chief justice of Punjab and Haryana High Court,” Justice Lodha said.

“Who has said Mr Manjunath has been recommended…? You believe all reports in the media…. I am the Chief Justice of India. We have not recommended Mr K.L. Manjunath for transfer or elevation. The entire matter has been placed on an erroneous plea.”

The remarks that followed reflected Justice Lodha’s anguish. “I am the Chief Justice of India. I don’t know if there is another CJI. I don’t know if there is another collegium operating,” he said.

“I am pained there has been a campaign… how a mischievous campaign has been going on particularly in one newspaper…. I am concerned. For God’s sake don’t bring a writ petition for a non-existent cause connected with a decision of the collegium.”

your questions on THE COLLEGIUM ROW

History of the controversy over the collegium system of judicial appointments, which the government has sought to replace by introducing two bills on Monday

Who selects Supreme Court and high court judges for appointment now?

A collegium (panel) of the Chief Justice of India and two to four other senior-most apex court judges. It does so in consultation with the Centre but has final say in any difference of opinion.

What is the dispute?

The Centre believes it should have an equal say in judges’ appointments. On Monday, it introduced two bills — including a constitutional amendment bill — in the Lok Sabha to be able to form a six-member national judicial appointments commission that will select judges for appointment. The commission will have the Chief Justice of India (CJI), two other apex court judges, the Union law minister and two eminent citizens.

Why did the dispute arise — didn’t the Constitution lay it out clearly how judges are to be appointed?

No. First, the Constitution says nothing about a collegium of apex court judges. Second, it does not unambiguously spell out a formal system for appointing the higher judiciary.
Third, when it says the President should hold “consultation” with the CJI and certain other constitutional dignitaries over which judges to appoint, it does not clearly say whether “consultation” entails the “consent” of all the parties.

So what does the Constitution say?

Article 124, dealing with the appointment of Supreme Court judges, says:

(i) The President shall appoint them after consultation with such Supreme Court and high court judges as the President may deem necessary;

(ii) The CJI shall always be consulted over the appointment of any apex court judge other than the CJI.

Article 217(1), dealing with the appointment of high court judges, says:

(i) The President shall appoint them after consultation with the CJI and the governor of the state;

(ii) The chief justice of the high court should also be consulted over the appointment of judges other than the chief justice.

Was there a controversy from the outset?

There were no confrontations between the judiciary and the executive till 1981, although there were murmurs that Indira Gandhi, during her stint as Prime Minister, tried to appoint her favourites as Supreme Court judges or as the CJI.

So, how did controversy break out?

In 1981, while dealing with a service dispute involving a judge, a two-judge apex court bench held that the power to appoint Supreme Court and high court judges was vested solely with the Centre (through the President), albeit “subject to full and effective consultation with the constitutional functionaries (including the CJI) referred to in Articles 124 and 217”.

Then how come it’s the judiciary that now appoints the judges through the collegium?

That turning point came in 1992 in what has come to be known as the Advocates-on-Record case. A nine-judge Constitution bench ruled that the judiciary and not the executive (Union government) had primacy in the judges’ appointment process. It said
the executive should be consulted but its consent wasn’t necessary.
From then on till 1998, the CJI alone had the final say in judges’ appointments.

What happened in 1998?

That year, the Centre made a “presidential reference” to the Supreme Court asking whether the expression “consultation with the Chief Justice of India”
in Article 217(1) and Article 222(1) — dealing with judges’ transfers — meant consultation with the CJI alone or with a plurality of senior judges who would help the CJI form his opinion.

A seven-judge bench ruled that the expression implies “consultation with a plurality of judges” and that “the sole, individual opinion of the Chief Justice of India does not constitute ‘consultation’ within the meaning of the said articles”.

That led to the current collegium system.

How are judges selected and appointed under the collegium system now?

High court judges: A candidate must have had at least 10 years’ legal practice and can be a lawyer or a subordinate judge. The high court chief justice picks a panel of prospective candidates after informal consultations with the two other senior-most judges of the high court — no advertisements are put out or applications sought.

After examining the would-be candidates’ competence and integrity and state intelligence inputs about them, the chief justice forwards the final list to the CJI. A collegium of the CJI and the two other senior-most apex court judges makes the final selection, often consulting any other apex court judge who has worked in that particular high court.

The collegium then forwards the names to the President through the Union government.

Supreme Court judges: Chief justices or the senior-most presiding judges of the high courts are eligible for appointment, and so are eminent lawyers with over 10 years’ experience. A collegium of the CJI and the four other senior-most apex court judges makes the selections.

What if the government does not agree with the collegium’s selections?

It may, through the law ministry, object to a candidate or seek clarifications about a candidate’s suitability or eligibility. If the collegium sticks to its stand, the government has no choice but to accept it.

How will the proposed law help the government?

It will give the executive a direct say through the Union law minister. The presence of two eminent citizens will further curb the judiciary’s sway over the recommendations. The need for a unanimous or 5-1 decision for any recommendation — and for a unanimous decision if the panel has to send back a name after the government has sought a rethink — gives the executive a safeguard against being overruled summarily.