Abstract
The accountability before law is an important aspect of democracy. The state should keep respect for judiciary in order to maintain the democratic nature of nation. Otherwise fascism will prevail over the country. With all its flaws and limitations,collegium system is the better available system for appointment of judges. It is necessary for an independent judiciary.
Executive - Judiciary Conflict
The republic of India follows a parliamentary form of sovereignty inclined to rule of law and separation of powers. It means nothing accountability before law. Law is above all, everyone should be subjected to the same law.
Inorder to achieve the goals of rule of law the doctrine of separation of powers are indispensable. The doctrine of separation of powers has no place in a strict sense in the Constitution of India. But the functions of different organs of the government has been clearly earmarked so that one organ of the government doesnot usurp thr functions of another. It is necessary for maintaining the predominance of legal spirit.
Article 124 of the Constitution of India deals with the establishment and constitution of Supreme Courts.
Appointment of Chief Justice of India until 1973
Till 1973,there existed a consensus between the political sovereign and Chief Justice. Then a convention was formed where the senior most judge of the Supreme Court was to be appointed as the Chief Justice of India. But it was violated in 1973 and 1977 as in 1973,A.N.Ray was appointed as the Chief Justice of India superseded three other Supreme Court Judges senior to him. This resulted in a conflict between the executive and the Judiciary. Actually it is not the conflict between the executive and Judiciary as here the executive are leaded by political sovereign. It is the conflict between fascism and democracy.
The Birth of Collegium System
In the first judges case or S. P. Gupta case the Supreme Court of India discussed the word ' consultation ' in the constitutional article 124 and said consultation doesnot mean concurrence. The president was not bound to make a decision based on the consultation of the supreme court.
In the second judges case, the supreme court overruled its earlier verdict and changed the meaning of consultation to concurrence. Thus binding the President of India with the consultations of the Chief Justice of India. This resulted in the birth of the collegium system.
In the year 1998 the presidential reference to the Supreme Court was again questioned and it was pronounced. The chief justice willnot be the onlyone as a part of the consultation process. Consultation would include a collegium of four senior most judges of the supreme court.
Collegium System Bulwark of Independent Judiciary
The appointment process via collegium system takes a long time since there isnot a fixed time limit for it. Then it faces a lot of criticism not only from the government but also from the civil society due to its lack of transparency and accountabilty.
In 2014 the Parliament of India passed the 99 th constitutional Amendment Act, 2014 the National Judicial Commission Act ( NJAC) to replace the collegium system for the appointment of judges.On 16 October 2015,by a majority opinion of 4:1 the Supreme Court of India struck down the constitutional amendment and the NJAC Act restoring the two - decade old collegium system of Indian judiciary. The court pronunced that NJAC is interfering with the autonomy of the judiciary which results in tampering of the basic structure of the constitution.
Then in 2023, in the case of Advocates Association Bengaluru v Barun Mitra and Anr Contempt Petition(c) No 867/2021 in TP (C) No 2419/2019 Supreme Court criticises centre for sitting over collegium proposals for Judges' transfer." Ten reccomendations for transfers have been made in the end of September and end of November.In that the government has very limited role. Keeping them pending sends a very wrong signal It is unacceptable to the collegium ". Justice Kaul orally told Attorney General for India R Venkataramani
The court commented that delay in the recommendation not only affects the administration of judges, but also creates an impression of third party sources interfering on behalf of these judges with the government.
With all its flaws and limitations, collegium system is the better available system for appointment of judges.It is necessary for an independent judiciary. The independence of the judiciary can be secured by the Executive respecting the recommendations the executive will not damage the judiciary. It willnot damage the judiciary. It will become a self- inflicted wound in the longer run.
Conclusion
Today the world follows a welfare state concept inclining towards predominant position to humanity. This can alone be achieved through rule of law. Independent judiciary is one of the most important perspective of rule of law.So with all its flaws and limitations, collegium system is the better available system for appointment of judges. It is necessary for an independent judiciary.
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