Lord Denning said, “Every judge, in a sense, is on trial to see that he does his job honestly, and properly”, and that “justice is rooted in confidence, and confidence is destroyed when right-minded people go away thinking that the judge is biased”. It goes to the credit of our earlier judges, though appointed by the state, that they administered justice judicially, and with the requisite detachment within the rule of law.
The situation, however, changed with Indira Gandhi assuming office. In the matter of appointment of judges, political philosophy, and the political leaning of a candidate became a major consideration. And then came the Emergency. Judges were put to test in the matter of ADM Jabalpur, and barring one brave exception, the judges failed the Constitution, and thus the nation. They just forgot, nay ignored, the words of Lord James Mansfield in Rex versus Wilkes: “The constitution does not allow reasons of State to influence our judgments: God forbid it should! We must not regard political consequences; how formidable soever they might be: If rebellion was the certain consequence, we are bound to say ‘fiat justitia, ruat caelum’, meaning, let justice be done though the heaven falls.”
Realising the gravity of the said situation, and with an ardent desire to stop the judiciary from becoming an organ of state power, it was felt that the role of the state in the appointment of judges in terms of Article 124 (2) and 217 needed to be reconsidered. But then, in 1982 in S P Gupta’s case, the Supreme Court gave its approval to the primacy of the state in the matter of appointment of judges. Mercifully, that judgment of a bench of five judges was overturned subsequently by a bench of nine judges. It held that the provisions for consultation with the Chief Justice of India, and the Chief Justices of the high courts in Articles 124 (2) and 217 of the Constitution were introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of a candidate, and his/her suitability for appointment as a superior judge. It also held that the initiation of the proposal for appointment of a judge to the SC must be made by the CJI after wider consultation with senior judges, and likewise in the case of high courts. And no appointment of any judge to the SC or any high court can be made unless it conforms with the opinion of the CJI. Thus, what is known as the “collegium system” was born.
Governments, irrespective of which party is in power, have from time to time expressed their reservations about the courts taking upon themselves the power to appoint judges. The present government tried to dilute the primacy of the judiciary by introducing Article 124 (A) by a constitutional amendment, and by enacting National Judicial Appointments Commission Act, 2014. The SC has struck down both the amendment and the Act. Hence, the judiciary continues to enjoy primacy in the matter of appointments.
Has the collegium system succeeded? Unfortunately, in some cases, it has not covered itself with glory. There have been cases where the nearest relative of Supreme Court judges has been appointed as a high court judge, ignoring merit. During the regime of Chief Justice Ranjan Gogoi, judges far lower in the combined All India Seniority of High Court judges were appointed to SC, and the reason assigned was that those selected were found more meritorious.
More recently, three senior-most district judges of Delhi who were directly appointed as Additional District Judge from the Bar with impeccable integrity, and with “very good” ACRs have not been recommended for elevation to the High Court by the collegium, while officers junior to them have been recommended. This has raised eyebrows and protests, including by the coordinate committee of the various Bar Associations, and Bar Council of Delhi. The collegium must remember that the brightest star of the Indian judiciary, Justice H R Khanna, was from the subordinate judiciary, and was elevated as high court judge solely on account of his honesty and seniority. The collegium system is still the best, but it needs to weed out what is wrong in its actual working. It is hoped that the system will make course corrections in deserving cases.
This column first appeared in the print edition on August 11, 2021 under the title ‘Collegium, heal thyself’. The writer is a former judge of the Delhi High Court