The “collegium”, born in the Supreme Court of India on October 6, 1993, after suffering barrage of brickbats from MPs is on life support; the assent of the President to the Constitution (121st Amendment) Bill, would signal the pulling of the plug from the ventilator. Hence this obituary note:
“The collegium is gone” was the gleeful headlines in most media as if the heralding was about the end of a dreadful epidemic. The “collegium” devised and fabricated in 1993 and finetuned in 1998 by the Supreme Court is a group of senior-most judges of the Supreme Court who in effect appoint the superior court judges; the court achieved this by doing violence to the plain language of the Constitution. India has the dubious distinction of being the only country in the world where judges appoint other judges. This machinery that has been in operation ever since 1993 does not find a place in the text of the Constitution because it was not brought in through an amendment to the Constitution; hence it lacks constitutional legitimacy.
Late Justice J.S. Verma, the celebrated judge was the principal architect of the collegium. He had been publicly confessing that the devise was not intended to be a permanent protection against the feared executive intrusion in to the field of judicial appointments and transfers; he expected it to be remodelled or even replaced more sooner than later.
To appreciate why the Supreme Court resorted to this mechanism, reference has to be made to the atmosphere then prevailing. Ever since I.C. Golaknath’s case, (1967) where the Supreme Court held that the fundamental rights were outside the purview of Parliament’s power to amend the Constitution, there has been a growing demand among politicians to appoint judges who were committed to the government’s political philosophy. The cry for “committed judge” got shriller after Kesavananda Bharati case (1973) where the court held that the “basic structure” or “the fundamental features” of the Constitution should not be altered by the process of amendment. The phoney Emergency that followed since June 1975 exposed the country to virtual dictatorship for about a year and a half. During that period, the first victim was the judiciary; the inconvenient judges of high courts were transferred against their will and the judiciary itself was emaciated.
Fortunately, the Emer-gency came to an unexpected end in early 1977, but the fear of the executive meddling with the judiciary was hovering. It was in that atmosphere that the Supreme Court devised the collegium to keep the judiciary out of bounds to the executive.
It may be remembered that the concept of National Judicial Commission has not come up as a reaction to the collegium. In fact, in the year 1990 the late Dinesh Goswami, the law minister in the V.P. Singh government, had proposed through the Constitution 67th Amendment Bill a National Judicial Commission to deal with the question of appointment and transfer of judges of the higher judiciary. That commission also had assigned a role for the executive. The bill lapsed.
The Chief Justice of India only a few days ago in the open court supported the collegium and many other predecessors of his also had expressed faith in that system. What would have happened to the judiciary if the collegium system were not introduced in 1993 is a moot question with no easy answer.
Bills have already been passed by both the Houses of Parliament for amending the Constitution with the introduction of Article 124-A establishing a six-member commission to appoint judges and a separate one to regulate the working of the commission. Therefore, it may appear to be a waste of time to ponder whether the collegium itself could have been remodelled and strengthened in the light of experience gained.
Just in case the collegium survives or revives as a result of challenges before the Supreme Court to the validity of the new laws, one suggestion is to adopt the collegium system — may be with the admission of the law minister into it — make it part of the text of the Constitution through an amendment.
The amended Constitution would provide for establishing a permanent autonomous body called the National Judicial Appointments Selection Committee. That committee would consist of persons well versed with the judiciary and legal aspects — need not be a retired judge — and can be an experienced lawyer who has no intention of reverting to practice. Even the new Judicial Appointment Commission would need such a selection committee to make it efficient; but the new constitutional amendment has ignored this aspect and the supporting law cannot bring in an independent autonomous body answerable only to the commission. The new law expects the commission to work with the assistance only of the ministry; the independence of the judiciary need no better assurance with veto powers to “the law minister plus one” to nix decisions approved by the majority.
The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com
