Sarthak Sethi
“There is one important case decided by the Supreme Court, in which I have appeared and won, and which I have lived to regret… it is the decision that goes by the title- SC Advocates on Record v. UoI”
–Before Memory Fades, Fali. S Nariman.[i]
The Supreme Court of India in 2020, as it issues suo moto charges of criminal contempt to quash criticisms of its functioning[ii], has morphed into an institution that remains politically, and operationally, completely insulated from other organs of democracy. A gradual, but undeniable, progression has transitioned Indian judiciary from its positivist rigidity, to an era of fluid, pervasive involvement in governance and law-making. This judicial ‘autocracy’ is a product of unparalleled judicial independence, which was cemented in 1993 when SP Gupta[iii] was overturned by the ‘2nd Judges Case[iv]’, which interpreted ‘consultation’ under Article 124[v] to necessarily mean ‘concurrence.’
The collegium has uniquely positioned India to have a ‘constitutionally ambiguous’[vi] mechanism for judicial appointments, creating a self-perpetuating judicial system. While this high-threshold of judicial independence has allowed for liberalization and a rights-based approach, the lack of transparency in appointments has come at the cost of judicial accountability. Over the course of this essay, I will first critique the NJAC as an alternative to the collegium, and establish its non-viability, based on the assumption that judicial accountability should be achieved only if judicial independence is not violated in the process, giving primacy to the latter. After invalidating the merits of implementing the NJAC, I will argue that the collegium system itself needs an internal check, through the idea of judicial review of judicial appointments. A system of internal review will maintain judicial independence, while adding accountability and transparency to the process.
Non-Viability of the NJAC
Attempting to introduce corrections in our judicial appointment process through structural changes to the collegium is a secondary consideration; the primary focus in academic, and political discourse, is developing comprehensive alternatives to the collegium itself. The most significant manifestation of this search for an alternative mechanism, was the 99th Constitutional Amendment[vii], introducing the National Judicial Appointments Commission (“NJAC”), as well as the NJAC Act, 2014. The Commission consisted of the Chief Justice of India, two senior judges of the Supreme Court, the Union Law Minister, as well as two ‘eminent persons’, to be appointed by a committee consisting of the Chief Justice of India, the Prime Minister, and the Leader of Opposition in the Lok Sabha.
In Supreme Court Advocates on Record v Union of India[viii], a 4-1 ruling of a constitutional bench, including a dissent by Justice Chelameswar, declared the NJAC to be unconstitutional, and revived the collegiate system, effectively rendering judicial primacy to be a part of the basic structure. Independent of this judgement, I will lay down the demerits of the NJAC, and attempt to prove that despite its many flaws, the collegium is structurally less problematic than its short-lived replacement.
Firstly, the body includes no procedure or system to make the appointment process transparent-the opaqueness in appointments is the primary deficiency of the collegium. Merely constituting the commission to extend beyond members of the judiciary is not sufficient for accountability in the process. Secondly, the inclusion of the phrase ‘‘any other criteria of suitability’’ under Section 5(2), and no criteria for the appointment of “eminent persons”, means that the judicial appointment process, and the appointment of the commission itself, can be completely arbitrary. Thirdly, the provision for adding SC/ST/women members on the commission, while significant, is insufficient in terms of organically inducing inclusivity in the Indian judicial system. Moreover, Sections 11 and 12 of the Act allow the Commission to make rules and regulations regarding appointments even when Parliament is not in session, creating scope for executive abuse.
However, the most significant drawback of the NJAC is that it compromises judicial independence. Arguing that executive control of judicial appointments is dangerous is not a theoretical hypothesis; it is a dangerous reality, demonstrated in Indian history through the 1970s.[ix] Judicial independence does not necessitate judicial hegemony and the monopolisation of appointments (many argue that the collegium is such a monopoly). The presence of executive influence does not inherently equate to a lack of judicial independence.[x] However, this is where the NJAC falters- It substitutes judicial hegemony with executive hegemony. The presence of Section 5(2), requiring an 83.3% majority, gives the executive an absolute veto over appointments, even if all 3 Judges are fully unanimous in their decision.[xi] Separation of powers, judicial independence and primacy of the CJI are all part of the basic structure. It is true that judicial accountability is important in generating public trust, and limiting bias. However, these considerations are contingent on the judiciary being independent in the first place, otherwise they lose relevance. In arguendo, even if we ignore the argument giving judicial independence primacy over accountability, and believe that a tradeoff can be made, the NJAC still should not be implemented. It’s lack of transparency, and scope of abuse, fails to create accountability. Why compromise judicial independence for a flawed, problematic model?[xii]
Internal Check of Collegium Appointments
Having established above that that the primary alternative to the collegium generates more demerits than benefits, it is important to evaluate the possibility of introducing corrective measures within the current system itself. This is primarily attained through two ideas- Increased transparency in the appointment process, and subjecting judicial appointments to a judicial review.
I will first lay down a reasoning in law for the creation of such a mechanism, before addressing the threshold of review, and the modus operandi. To evaluate the degree of, and even possibility of a review, the (legal) nature of the concerned judicial appointments must be considered. Conventionally, the apex court has held that the process of appointments (not restricted to judicial appointments) is an action that by nature is administrative, and based on its own judgement under A.K Kraipak, held that administrative decision-making is indeed subject to judicial review, based on broader elements of natural justice.
In the 2nd Judges Case, the Supreme Court nearly dismissed the possibility of judicial review of appointments to the judiciary, arguing that by creating a collegium within the judicial branch itself, the need for such review had been eliminated, as long as the collegium’s participation in the process was maintained. This ignored the possibility of reviewing the collegium’s decision-making process itself, beyond just its participation. The Barrium[xiii] case held that the Court would review the relevance of the evidence or reasoning behind an administrative decision. This is coupled with Indira Jaising, where the apex court held that judicial administrative processes require some element of transparency, as well as fairness. Decisions should be based on objective factors. Hence, similar to other administrative processes, as in Barrium[xiv], it can be reasoned that, contrary to the 2nd Judges Case, judicial administrative decision-making, such as appointments, can be subject to judicial review.
The 2nd Judges Case rejects judicial review of the appointment process based on the notion that the judiciary has been given primacy through the collegium. However, judicial independence does not necessitate fair procedure, particularly when the collegium operates in such a clandestine manner. The dissent in the NJAC judgement fairly noted that the collegium and how it functions is “India’s best gaurded secret”. [xv]
Understandably, the threshold of such review must be carefully balanced. At the minimum, without questioning the wisdom of the collegium, the process, and not the decision itself, may be tested for natural justice principles. Relevance[xvi] of the substance on which the decision has been made, may also be reviewed, as argued above. Given the pendency in appointments, the court can undertake a review if there appears to be a decision that is clearly erroneous.[xvii] This creates two tiers of check- At the review process, and at the collegium level itself. There may be more reasoned decision-making by the collegium to begin with, due to future accountability.
Conclusion
It must be acknowledged that the limiting factor on the viability of this idea is not the process, but the judiciary itself, which has consistently been reticent in introducing any checks-and-balances on its own operation. Moreover, for such a hegemony to be regulated, the Court must uphold its promise of transparency[xviii], as found in the NJAC Judgement. Structured reform to remove the Collegium from the shadows is the first step in generating public trust, and creating a healthier democracy.
[i] Fali S. Nariman, Before Memory Faddes (2010).
[ii] Why Contempt Case against Prashant Bhushan Could Set a Bad Precedent, The Print, 23 July, 2020.
[iii] S.P. Gupta v President Of India And Ors. AIR 1982 SC 149.
[iv] Supreme Court Advocates on Record Association v Union of India, AIR 1994 SC 268.
[v] The Constitution of India, 1950, Article 124.
[vi] International institute for Democracy and peace, Judicial Appointments, August 2014, http://constitutionnet.org/sites/default/files/judicial_appointments_0.pdf.
[vii] The Constitution, (Ninety Ninth Amendment), 2014.
[viii] Supra, 4.
[ix] Andhyarujina, T.R. A Committed Judiciary: Indira Gandhi and Judicial Appointments, (2018).
[x] Abhniav Chandrachud, The Insulation of Indian Judiciary, Economic and Political Weekly, vol. 45, no.13, 2010, pp.38-42.
[xi] Indira Jaising, National Judicial Appointments Commission: A Critique , Economic and Political Weekly, vol. 49, no. 35, 2014, pp. 16–19.
[xii] No Cure for the Malaise: A Law Passed in Haste Will Replace the Flawed Judicial Collegium with Yet Another Flawed System, Economic and Political Weekly, vol. 49, no. 34, 2014, pp. 7.
[xiii] The Barium Chemicals Ltd. And Anr vs The Company Law Board And Others, 1967 AIR 295.
[xiv] Id.
[xv] Hrishika Jain, Towards a Model of Judicial Review for Collegium Appointments, CALQ, Vol 4.2, 2018.
[xvi] Supra, 15.
[xvii] Supra, 15.
[xviii] Towards Transparency In Judicial Appointments, The Hindu, October 17, 2017.
The author is a 2nd Year Student, NUJS Kolkata
Image credits : BCCL 2020
Constitutional Law Society 
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