JUDICIAL PRIMACY IN APPOINTMENT OF JUDGES

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Shakhyam Agrawal, a student of BBA.LL.B from Symbiosis Law School, Noida enlightens about judicial primacy in appointment of judges.

INTRODUCTION

The Judges of the higher judiciary i.e. The Supreme Court and The High Courts, are appointed by the President of India with the recommendation of the Collegium which consists of members of the judiciary. The Collegium system has evolved with time and through the introduction of the collegium system, the history of judicial appointment changed to be of judicial primacy.

Primacy means “the state of being first in importance”, as in judicial primacy in appointment means the opinion of the judiciary is given the first importance in the appointment of judges.

Article 124 and 217 of the Constitution of India deal with the appointment of Judges of the Supreme Court and High Courts respectively. In the present time, the courts believe that judicial primacy is necessary for the appointment of judges, and also that judicial primacy is necessary for judicial independence which is the basic structure of the constitution of India and the consultation process was established through a series of judgments finally in the year 1993 the primacy in the appointment of judges was achieved. In this blog, I would be briefing about the series of cases through which judicial primacy evolved in the appointment procedure of judges.

JUDICIAL PRONOUNCEMENTS VIS-à-VIS APPOINTMENT OF JUDGES

After the enactment of the Constitution of India, The President i.e. the executive, had the sole power to appoint the judges of the higher judiciary, and also the consultation of the Chief Justice of India was not taken into account but for the first time a five-judge bench in the case of “Sankalchand Himatlal Seth V. Union of India,1976” made the consultation of the judiciary compulsory to be taken into account and without the consultation of the judiciary no judges could be appointed or transferred, this case also specified that there should be due deliberation between the president and the CJI on full and identical facts and if the consultation of the CJI is disregarded by the president this would be a ground for Judicial Review. Then after this case, the consultation was made compulsory. Then the landmark case of “S P Gupta V. Union of India, 1981” a seven-judge bench popularly known as the first judge case made it clear that the executive has the sole power to appoint the judges and consultation is necessary for such appointment but Consultation does not mean concurrence i.e., the executive is not bound by the order of the judiciary and has complete discretion to its opinion about such an appointment and it was pointed out that CJI opinion does not have primacy. Then after in 1991, a three-judge bench decided on the case of “Subhash Sharma vs Union of India'' in which the court believed that the correctness of the case of S P Gupta needs to be reconsidered and also thereby a more purposive reading of the constitution is needed to be done by the Supreme Court. Taking into Account the Judgment in the Subash Sharma case a nine-judge bench was established and it was decided on the landmark case of “Supreme Court Advocate on Record Vs. Union of India, 1994”. This case is considered the most important case concerning the establishment of Judicial Primacy in the Appointment of Judges and is also popularly known as the Second judge case. Through this case, the Collegium Model was established in which the opinion of the judiciary was given more importance, as well as the executive primacy established through the case of S P Gupta, was overruled by the Apex Court. This case firstly made it clear that Consultation means Concurrence and also the president is bound by the opinion of the Judiciary. Secondly, it said that the CJI's opinion is not solely his own opinion but rather it is the collaborative opinion of the other judges of the Supreme Court or the Constitutional functionaries and also that the judges should not be appointed based on seniority rather the appointment should be based on merit, here seniority does not mean the age of the judges rather its the tenure spend by them in such court. Thirdly, it said that the core collegium should be of the CJI and two other senior-most judges of the Supreme court, and apart from the core collegium, four other judges would be consulted which would change according to the suitable high court. And breaking the old convention of seniority followed for appointment of the CJI it said that solely merit should be taken into consideration for such appointment and also in appointment of High Court Judges the consultation of the governor is required. Thus, thereby in this case, the collegium system was established and judicial primacy was achieved as well as critics believed that the collegium system established judicial exclusivity rather than judicial primacy. It was not transparent, lacked accountability, and came out as a judicial aristocracy where the Chief Justice of India and the collegium became the initiator and appointer of judges, and the President of India was made only a formal approver in the process.

Then in 1998, the President of India sought a reference from the Supreme Court under Article 143 of the constitution in which more clarification regarding the functioning of the collegium was asked. The Supreme court replying to such a reference constituted a nine-judge bench in which they made it clear that the opinion of each judge or constitutional functionaries of the collegium should be in writing and the opinion of the CJI is one of them and do not hold major weighs further the court also held that the if the CJI bypasses the opinion of all other consultees then the president is not bound by such an opinion of the CJI. The Bench also modified the functioning of the collegium in which the core collegium was made bigger consisting of CJI along with 4 other senior-most judges of the Supreme court in the appointment of supreme court judges and CJI along with 2 other senior-most judges of the Supreme Court in High Court Judges appointment. This Presidential reference is also popularly known as the Third judge case as it made such a modification in the operation of the collegium system. Then in the year 2014, the Parliament passed the 99th Amendment, and The National Judicial Appointment Commission Act, 2014 was enacted which scrapped the Collegium system and stated that all appointments in the judiciary should be with the consultation of the NJAC as established under the act. The supreme court advocates then challenged the constitutional validity of such an amendment and a five-judge bench was established in the case of “Supreme Court Advocate on Record V. Union of India,2015”. The bench with a 4:1 majority decided that the 99th Amendment was unconstitutional and should be removed; the court further held that NJAC was violating Judicial Primacy which is a part of the basic structure of the constitution under Judicial Independence. The court also said that the collegium is a participatory process and thereby the aid and advice tendered by the CJI after consulting other judges is mandatory and is entitled to primacy. They believed that judicial independence can only be achieved when there are institutional safeguards to limit outside influence and such influence could be by the political appointees in the NJAC, and the court was of the view that it is necessary to curtain such an influence to protect the basic structure of the Constitution, therefore, the 99th amendment was held unconstitutional. The descent opinion of Justice Jagdish Singh Khehar was praised by the critics as he believed that the NJAC was not violative of judicial primacy and is also a participatory process for such appointments. But as the majority was against such an idea the 99th amendment was removed and the Collegium system was restored in practice, it was made clear by the apex court that judicial primacy is necessary for the appointment of judges.

Through the above discussion, it could be inferred that judicial primacy is necessary for the appointment of judges and the Collegium system established through the Second Judge case is the main source of the establishment of judicial primacy in the appointment procedure in India. The Apex Court is of the clear opinion that as long as judicial primacy is not followed in appointment judicial independence could not be achieved and the doctrine of separation of power would also get violated, through a series of judgments the privacy in appointment procedure is obtained.

CONCLUSION

My personal opinion as to such a Judicial primacy is that as long as the appointment procedure is impartial and fair the primacy obtained through the collegium system is good but when such primacy is against the essence of the constitution it would be difficult to follow such a procedure as judiciary appointments are one of the most important factors for upholding the Constitution in India as the judges are the one who regulates the deviation. So, therefore such an appointment procedure should ensure independence, integrity, reflex diversity, and demonstrate professional competence in my opinion.

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