09/12/2022
The Collegium System – A system to retain the Blue Blood
The Collegium System – A system to retain the Blue Blood
✍️ Laxminarayan Ex.IPS
The Vice-President Jagdip Dhankar spoke in the Rajya Sabha,” Striking down of NJAC (National Judicial Appointment Commission) Act in 2015 by the Supreme Court was a glaring instance of severe compromise of Parliamentary sovereignty and disregard of mandate of the people of which this House and Lok Sabha are custodians.” He further said,” Parliament is ‘duty bound’ to address the Supreme Court’s ‘overreach’ in striking down the National Judicial Appointments Commission (NJAC) Act in 2015 which compromised ‘Parliamentary sovereignty’ and disregarded the people’s mandate.” The Vice-President opines,” There is no parallel to such a development in democratic history where the duly legitimized constitutional prescription of NJAC through the 99th Constitutional Amendment Bill, passed unanimously by both Lok Sabha and Rajya Sabha, was judicially undone. Vice-President’s remark is a naked truth and indicates Supreme Court’s soft corner for Blue Blood theory.
Article 124 of the Constitution deals with the appointment of Judges. According to this Article, every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for this purpose. The Collegium system originates from this Article. It is a moot point to consider, when different All India Services were created why the All India Judicial Service was not created. The answer is simple. The then Prime Minister was a shrewd man. He wanted Judges of his choice so that if any wrong is done Courts can protect him. He and Gandhi were themselves advocates. They wanted to oblige their friends and colleagues.
The Indian judicial Collegium system, where existing judges appoint judges to the nation’s constitutional courts has its genesis in Article 124 of the Constitution and three of its own judgments made by Supreme Court judges which are collectively known as Three Judges Cases. Over the course of the three cases, the court evolved the principle of judicial independence to mean that no other branch of the state would have any say in the appointment of judges. The court then created the Collegium system which has been in use since 1993. It is important to note that there is no mention of the Collegium either in the original Constitution or in successive amendments.
On account of this Collegium System about 200 families are now controlling the judicial process in the country. A common man can’t aspire to become a Judge of High Courts or the Supreme Court unless and until he has good relations with one or the other existing judges. Merit has no meaning here for there does not exist any system to evaluate the knowledge of law of an aspirant. There is neither an open exam nor open interviews based on independent boards.
Seeing the inherent defects in the Collegioum System, the then Government passed the Constitution ( 99th Amendment) Bill, 2013, that amends Article 124(2) and 217(1) of the Constitution of India and establishes the National Judicial Appointment Commission, on whose recommendation the President would appoint judges to the higher Judiciary. This amendment was bound to weaken the appointment by blue blood. The Supreme Court lost no time in reacting and stamped the Amendment as hitting the basic fabric and soul of the Constitution. Relying on this self concocted theory, the Supreme court had nullified several enactments in the past. The theory of basic fabric and spirit of the Constitution is an invisible sword that cuts law as per wishes of the Judges. There is no objectivity in this theory but it rules the Parliament which should be supreme in a true democratic system. The three wings should respect their boundaries to maintain a healthy democracy in the country.
In an ever changing world and values even Constitution is not sacrosanct. The France, where the first democratic government was installed after a bloody revolution, has changed the entire constitution not less than five times to accommodate the changing scenario and aspirations of the people.
There is no doubt that the judicial process should be independent of all influences. But this independent status can start only after the appointment of a judge or when he assumes office. How can it come into play before that? The appointment of a judge is an administrative process that should be done under a well laid down procedure and not by Spoil System. Unfortunately this is not being done at higher judiciary.
Cases are basically fought in lower courts or courts at the district level. In district courts judges are selected by State Service Commissions. After the selection the names of successful candidates are sent to the concerned High Courts who give appointments on the basis of requirements. Are judges of these courts not independent? This system runs smoothly and is not affected by successive governments.
What is wrong with the Indian Judicial Services? If all appointments are done by an independent agency like Union Public Service Commission, there will be no controversy. By working in the lower courts they will be well aware of the intricacies of legal battles and will be able to serve in a better way in higher judiciary. How can you expect fairness from a person who had been so for working for clients? He is bound to be partial when his client case comes before him as a Judge.
The theory of Blue Blood has long been rejected by the world quite early. But unfortunately this policy has intruded in our Judicial system. The best course would be to create an All India Judicial Service whose members will ultimately sit in the higher courts. If this happens then the allegation of partisan attitude will not be leveled against higher judiciary. This is the only way to ensure the independence of judiciary and unbiased judgments. Let us hope for a better justice system.
