Let collegium’s decisions be transparent

Yogesh Pratap Singh
Registrar, National Law University, Odisha

NO organ of the State is expected to exercise power beyond what is granted by the Constitution. This has been highlighted by the Supreme Court in many cases, particularly in ‘Golak Nath vs State of Punjab’ (1967). The Constitution is supreme and all authorities, including the judiciary, shall conform to this supreme law of the land which manifests the will of the people. Traditionally, the judiciary was understood to be the least ‘dangerous’ branch of the State, but this is no longer true. Now, judiciary wields more powers than those conferred upon it by the Constitution. The power of the courts has increased worldwide at an exceptional pace in the past few decades and Indian judiciary has been a frontrunner.

In exercise of its power of judicial review, the judiciary has not only regulated the administrative powers of the Union and the State executive, but also significantly controlled the prerogative powers of the head of the State (President and the Governor) i.e. power to grant pardon, power to promulgate ordinance etc. It has effectively endeavoured to control the powers of various other instrumentalities of the State and independent constitutional and legal functionaries, such as the Election Commission of India, Union Public Service Commission, Finance Commission and the Central Vigilance Commission.

Appropriation or misappropriation of due process and its further extension into a substantive due process has empowered the judiciary to declare a law made by the legislature unconstitutional, unjust and even arbitrary. Gradually, the judiciary also brought under its purview the constitutional amendment Acts. The judiciary has also extended its jurisdiction and powers to the subjects of legislative privileges. While Parliament has been claiming absolute sovereignty in matters of its privileges, the judiciary has staked its claim as a custodian of the Constitution. As a result, the judiciary and the legislature have been at loggerheads on the justifiability of legislative privileges. 

The Constitution made certain matters non-justiciable i.e. kept them outside the realm of the judiciary, for instance the non-enforceability of the Directive Principles of State Policy (Article 37). Later, the Ninth Schedule (Article 31-B) was introduced as another forbidden territory for the judiciary to keep certain laws, particularly those relating to land reforms, beyond the scope of judicial review.

However, disproportionate use of judicial review has debilitated even these express limitations. In the Jagadambika Pal case (1998) and the Jharkhand Assembly case (2005), the Supreme Court meddled with the powers and privileges of the legislature and diluted the essence of Article 212. Directing the presiding officers of the legislatures to discharge their functions in a given manner was unworkable and unacceptable. How could the executive authorities like the Chief Secretary of the state government or police officials be able to maintain order, arrange for the presence of the legislators and for their entry inside the House? If this was allowed, they would have been substituting the presiding officers in the matter of maintenance of discipline. 

In a significant judgment (‘IR Coelho vs State of Tamil Nadu’), a nine-judge Bench of the Supreme Court held that there could not be any blanket immunity from judicial review of laws inserted in the Ninth Schedule.

The apex court held that though the appointment is ultimately an executive act, the doctrine of judicial review did not justify the primacy of the executive. In the ‘Second Judges’ case, it held that ‘consultation’ really meant ‘concurrence’, and that the CJI’s view enjoys primacy since he is “best equipped to know and assess the worth” of candidates. The CJI, in turn, was to formulate his opinion through a body of senior judges that the court described as the collegium. In the ‘Third Judges’ Transfer’ case, the Supreme Court further held that the collegium will comprise, in the case of appointments to the apex court, the CJI and his four senior-most colleagues — and, in the case of appointments to the High Courts, the CJI and his two senior-most colleagues. Additionally, for appointments to the High Courts, the collegium must consult such other senior judges serving in the Supreme Court who had previously served as judges of the High Court concerned. The SC later discarded the idea of the National Judicial Appointments Commission Bill, terming it unconstitutional.

Paradoxically, the Supreme Court which tried to keep a constant check over every other organ/institution/body under the Constitution failed to apply a similar method of disciplining to its own functions. How is a judge appointed to the High Court or elevated to the Supreme Court, how is a judge appointed as the Chief Justice of a High Court and how and when is a judge transferred from one High Court to another? Are the views of the consultee judges given due weight by the collegium? The simple answer is: the public does not know anything about it even after 25 years of such a mechanism in practice. The reason has been the Supreme Court’s attitude towards the Right to Information Act despite preaching how vital is the citizen’s right to know how its public institutions are functioning. 

The recent recommendation of the collegium to elevate two High Court judges to the apex court by superseding 32 judges with greater seniority and more shockingly after negating its own recommendation to elevate P Nandrajog, Chief Justice of the Rajasthan High Court, is an obvious outcome of this mysterious system.

Why can’t the standards of judicial review which the Supreme Court applied to others be applicable to the collegium’s decisions, which are administrative in nature? The collegium is perhaps the only institution in our constitutional framework which has become an imperium in imperio i.e. an empire within an empire without any limitation on its powers.

The powers to appoint judges were appropriated by the Supreme Court under the guise of judicial independence, i.e. independence from executive and legislature but not independence from accountability. If serious thought is not given, the whole process will remain “a sacred ritual whose mystery is confined only to a handful of high priests,” as Justice PN Bhagwati once described it.