The lack of transparency in the collegium system, exposed by Justice J. Chelameswar, has stunned the whole country and eroded the faith of the public in the institution's inviolability. All powers tend to expand, and judicial power is no exception. During the Constituent Assembly debates, some members opined that the concurrence of the Chief Justice of India must be a necessary pre-requisite for appointments to Higher Judiciary. However, this was emphatically rejected by Dr. Ambedkar, Chairman of the Drafting Committee.
The Second Judges case ruled in favour of not only the primacy of the Chief Justice of India but also practically eliminated the role of the Executive. "Consultation" by judicial interpretation was assigned the meaning "concurrence". To undo the situation and maintain independence of the judiciary, while at the same time claiming a participatory role in the selection of judges of the Higher Judiciary, the Parliament unanimously passed the Constitution (93rd Amendment) Act and also the National Judicial Appointments Commission (NJAC) Act. Predictably, this was challenged in the Supreme Court. Of the five judges who constituted the Bench, one Judge - Justice J. Challameswar - wrote a dissenting opinion and among the four others there was no unanimity. The judgment has revived the status quo ante - judicial supremacy without any meaningful role for the Executive.
The practice of judges appointing judges and claiming the same to be integral to judicial independence - a system nowhere in vogue an any democratic country governed by the Rule of Law - has attracted wide criticism not only from lawyers, litigant public, retired judges and jurists but also from all sections from society. In its working, the system spawned many an unedifying consequence. The judges of the Supreme Court and the High Courts, who are not members of the respective collegiums, were totally in the dark about how the selections were made and whether people with real merit were chosen or sidelined.
In deciding the Second Judges' and Third Judges' case, as well as the NJAC case, the Supreme Court has held that there are certain implied limitations to the powers of the Parliament. Time has now come to say that there should be implied limitations to judicial power, at least to the extent of collegium sharing with all the members of the court - Supreme Court or High Courts as the case may be. Even the author of the Second Judges' case Justice J.S. Verma, after his retirement, revised his opinion and favoured a review in the light of the experience gained after the verdict in the Second Judges' case. The intention of the Constitution makers, according to his re-thinking, was not to accord primacy to either the Judiciary or the Executive and the responsibility was to "find the most suitable person for appointment and this could best be done by a National Judicial Commission representing all wings headed by the Vice-President / Prime Minister / Chief Justice of India". Had this thought permeated his thinking while authoring the majority opinion in the Second Judges' case, the constitutional history of India would have been different.
Another former Chief Justice of India Justice E.S. Venkataramaiah viewed that the construction placed in the Second Judges' case, about the primacy of the judiciary, was totally undemocratic. Justice V.R. Krishna Iyer, one of the greatest Judges of our country, lamented that the Second Judges' case had overturned the delicate balance between the three organs of the State engrafted in the Constitution. The present crisis is unparalleled and unprecedented. The situation calls for immediate remedial action. One solution is that the President (Council of Ministers) may refer the following, among other questions, for the advisory opinion of the Supreme Court of India under Article. 143(1) of the Constitution: Whether instead of the collegium, the power should be exercised by the institution as a whole - Supreme Court or the High Courts as the case may be?
Whether the ambit and scope of judicial independence obtaining when Keshavananda Bharati was decided could be altered by judicial verdict. If so, whether such alteration would not amount to altering a basic feature of the Constitution forbidden by the Keshavananda case? What should be the role of the Executive if an alternative mechanism is to be brought into being for appointment of judges of the Higher judiciary? Whether the President can exercise his individual discretion in regard to appointments to the Higher Judiciary recommended by the Supreme Court collegium?
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