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Rethinking judicial appointments: Collegium vs. Commission

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Rethinking judicial appointments: Collegium vs. Commission

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Prianka Rao (/theprsblog/276) - October 16, 2015 No comments (/blogcomment/4259#comments)

Earlier today, the Supreme Court struck down the two Acts that created an independent body for the
appointment of judges to the higher judiciary. One of the Acts amended the Constitution to replace the
method of appointment of judges by a collegium system with that of an independent commission, called the
National Judicial Appointments Commission (NJAC).  e composition of the NJAC would include: (i) the
Chief Justice of India (Chairperson) (ii) two other senior most judges of the Supreme Court, (iii) the Union
Law Minister, and (iv) two eminent persons to be nominated by the Prime Minister, the CJI and the Leader
of Opposition of the Lok Sabha.  e other Act laid down the processes in relation to such appointments.
Both Acts were passed by Parliament in August 2014, and received Presidential assent in December 2014.
 Following this, a batch of petitions that had been filed in Supreme Court challenging the two Bills on
grounds of unconstitutionality, was referred to a five judge bench.  It was contended that the presence of
executive members in the NJAC violated the independence of the judiciary. In its judgement today, the Court
held that the executive involvement in appointment of judges impinges upon the independence of the
judiciary.  is violates the principle of separation of powers between the executive and judiciary, which is a
basic feature of the Constitution.  In this context, we examine the proposals around the appointment of judges
to the higher judiciary.
Appointment of judges before the introduction of the NJAC e method of appointment of the Chief Justice
of India, SC and HC judges was laid down in the Constitution.[i]  e Constitution stated that the President
shall make these appointments after consulting with the Chief Justice of India and other SC and HC judges as
he considers necessary.  Between the years 1982-1999, the issue of method of appointment of judges was
examined and reinterpreted by the Supreme Court.  Since then, a collegium, consisting of the Chief Justice of
India and 4 other senior most SC judges, made recommendations for persons to be appointed as SC and HC
judges, to the President.[ii]
Recommendations of various bodies for setting up an independent appointments commission Over the
decades, several high level Commissions have examined this method of appointment of judges to the higher
judiciary.  ey have suggested that an independent body be set up to make recommendations for such
appointments.  However, they differed in the representation of the judiciary, legislature and executive in
making such appointments.  ese are summarised below.
Table 1: Comparison of various recommendations on the composition of a proposed appointments body

Recommendat
Suggested composition
ory Body

2nd Judiciary : CJI; [For HC judges: Chief Justice of the relevant High Court of that state]
Administrative Executive : Vice-President (Chairperson), PM, Law Minister, [For HC judges: Includes
Reforms
Commission CM of the state] Legislature: Speaker of Lok Sabha, Leaders of Opposition from both
(2007) Houses of Parliament. Other: No representative.

Judiciary: CJI; [For HC judges: Chief Justice of the relevant High Court of that state]
National
Advisory Executive:Vice-President (Chairman), PM (or nominee), Law Minister, [For HC judges:
Council Includes CM of the state] Legislature:Speaker of Lok Sabha, Leader of Opposition from
(2005)
both Houses of Parliament. Other:No representative.

NCRWC Judiciary :CJI (Chairman), two senior most SC judges Executive: Union Law Minister
(2002) Legislature: No representative Other: one eminent person

Judiciary : CJI (Chairman), three senior most SC judges, immediate predecessor of the CJI,
Law three senior most CJs of HCs, [For HC judges: Chief Justice of the relevant High Court of
Commission
that state] Executive: Law Minister, Attorney General of India, [For HC judges: Includes
(1987)
CM of the state] Legislature: No representative Other: One Law academic
Sources: 121st Report of the Law Commission, 1987; Report of the National Commission to Review the
Working of the Constitution (NCRWC), 2002; A Consultation Paper on Superior Judiciary, NCRWC,
2001;  A National Judicial Commission-Report for discussion in the National Advisory Council, 2005; Fourth
Report of the 2nd Administrative Reforms Commission (ARC), ‘Ethics in Governance’, 2007; PRS. It may be
noted that the Law Commission, in its 2008 and 2009 reports, suggested that Government should seek a
reconsideration of the judgments in the ree Judges cases.  In the alternative, Parliament should pass a law
restoring the primacy of the CJI, while ensuring that the executive played a role in making judicial
appointments. Appointments process in different countries                   Internationally, there are varied
methods for making appointments of judges to the higher judiciary.  e method of appointment of judges to
the highest court, in some jurisdictions, is outlined in Table 2. Table2

: Appointment of judges to the highest court in different jurisdictions

Method of
Country Appointment to Who is involved in making the appointments
the highest court

SC judges are
It consists of the SC President, his deputy, and one member each appointed
appointed by a
by the JACs of England, Scotland and Northern Ireland.[iii]  (e JACs
UK five-person
comprise lay persons, members of the judiciary and the Bar and make
selection
appointments of judges of lower courts.)
commission.
Appointments
A selection panel comprising five MPs (from the government and the
are made by the
Canada opposition) reviews list of nominees and submits 3 names to the Prime
Governor in
Minister.[v]
Council.[iv]
Appointments
Supreme Court Justices are nominated by the President and confirmed by the
USA are made by the
United States Senate.[vi]
President.
Appointments
Half the members of the Federal Constitutional Court are elected by the
Germany are made by
executive and half by the legislature.[vii]
election.
Appointments
President receives proposals for appointments from Conseil Superieur de la
France are made by the
Magistrature.[viii]
President.

Sources: Constitutional Reform Act, 2005; Canada Supreme Court Act, 1985; Constitution of the United
States of America; Basic Law for the Federal Republic of Germany; Constitution of France; PRS. In
delivering its judgment that strikes down the setting up of an NJAC, the Court has stated that it would
schedule hearings from November 3, 2015 regarding ways in which the collegium system can be strengthened.

 
[i] Article 124, Constitution of India (Prior to 2015 Amendments)
[ii] S.P. Gupta vs. Union of India, AIR 1982, SC 149; S.C. Advocates on Record Association vs. Union of
India, AIR 1994 SC 268; In re: Special Reference, AIR 1999 SC 1.
[iii].  Schedule 8, Constitutional Reform Act, 2005.
[iv].  Section 4(2), Supreme Court Act (RSC, 1985).
[v].  Statement by the Prime Minister of Canada on the retirement of Justice Morris Fish,
http://www.pm.gc.ca/eng/news/2013/04/23/statement-prime-minister-canada-retirement-justice-morris-fish
(http://www.pm.gc.ca/eng/news/2013/04/23/statement-prime-minister-canada-retirement-justice-morris-
fish).
[vi].  Article II, Section 2, e Constitution of the United States of America.
[vii].  Article 94 (1), Basic Law for the Federal Republic of Germany.
[viii] Article 65, Constitution of France, http://www.conseil-constitutionnel.fr/conseil-
constitutionnel/root/bank_mm/anglais/constiution_anglais_oct2009.pdf (http://www.conseil-
constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/constiution_anglais_oct2009.pdf ).
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