Law Optional (Landmark Judgments) by Rajnish Jindal

Model Answer

Question #1. “In a federal structure congruence of the three organs of the state is very common. Mutual trust upon one another is essential but the same time being the custodian of the people each organ must be vigilant and proactive. In the appointment of judges, the Supreme Court and the High Courts transparency is sine qua non of independence of judiciary.” Substantiate the Statement in light of the Constitutional provisional related to the appointment of judges and Supreme Court Advocates-on-Record v Union of India (2015) case.  10 marks (150 words)

An independent judiciary is an important pillar for every democratic set-up governed by Rule of Law. It is the protector of the rights of the citizens and guardian of the Constitution. Judges must decide cases without fear or favour, affection or ill will and uphold the Constitution and the laws. The question that arises is whether the Supreme Court Collegium is the sole repository of power to select Judges, who will be independent and impartial and whether involvement of the executive wing of the State or members of civil society, per se, affects the independence of judiciary.

Article 124 of the Constitution of India provides that every Judge of the Supreme Court shall be appointed by the President “after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary”; and “in case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. Article 217 requires that every Judge of the High Court shall be appointed by the President “after consultation with the Chief Justice of India, Governor of a State and in case of appointment of the Judge other than the Chief Justice, the Chief Justice of the High Court”. These provisions, in clear terms, say that the appointing authority is the President; however, before the appointment, the President is required to consult the members of the judiciary.

The aforesaid provisions are in contrast with the provisions of Articles 103 and 192 under which the President/Governor is required to decide the questions of disqualification of members of Parliament/State Legislatures after obtaining the opinion of the Election Commission of India and “shall act according to such opinion”. The President/Governor has no discretion to decide the question of disqualification contrary to the opinion of the Election Commission.

Thus, the Constitution has used separate expressions, namely, “consultation”, and “shall act according to such opinion” for different purposes in different provisions. It is difficult to say that the Founding Fathers were oblivious of the meaning of these different expressions and the word “consultation” means “shall act according to such opinion”.

In First Judges case (1981), a Bench of seven Judges of the Supreme Court held that the expression “consultation” in Articles 124 and 217 cannot be understood as “concurrence”. In the event of disagreement between the constitutional functionaries, the Union Government will decide whose opinion should be accepted and whether appointment should be made or not; and the opinion of the Chief Justice of India has no primacy. The function of appointment of Judges of the constitutional courts is an executive function which rests with the President.

In Second Judges case (1993), a Bench of nine Judges of the Supreme Court overruling First Judges case held that the process of appointment of Judges to the Supreme Court and the High Courts is an integrated “participatory consultative process” for selecting the best and most suitable persons available for appointment. For appointment of Judges of the Supreme Court, a Collegium comprising of the Chief Justice of India and two senior most Judges of the Supreme Court will take the final decision. “In case of conflicting opinions by the constitutional functionaries, the opinion of the judiciary “symbolised by the view of the Chief Justice of India” and formed in the manner indicated, has primacy.” Through this process, the individual opinion of the Chief Justice of India was substituted by the collective opinion of the Collegium of Judges and a Collegium system came in place by a process of judicial interpretation; rather by judicial incorporation of certain provisions in the Constitution.

In Third Judges case (1998), the view taken in Second Judges case² was reiterated by another nine-Judge Bench. It was held that the expression “consultation with the Chief Justice of India” requires consultation with a plurality of Judges and the individual opinion of the Chief Justice of India does not constitute “consultation”. However, the composition of the Collegium, for appointment of Judges in the Supreme Court, was expanded to consist of the Chief Justice of India and four senior most Judges rather than the two senior most Judges. Here again, the Supreme Court interpreted the expression “Chief Justice of India” differently for the purpose of appointment for Judges of the Supreme Court and to the High Court. While in the case of appointment of Judges of the Supreme Court, the Chief Justice of India would mean the Collegium comprising of the CJI and four senior most Judges; in the case of appointment of the Judges of the High Court, the Chief Justice of India would mean the Collegium comprising of the CJI and two senior most Judges.

Through the Constitution (99th Amendment) Act, 2014 and with the passage of the Constitutional Amendment, Parliament passed the National Judicial Appointment Commission Act, 2014which provided that appointments and transfers would be on the recommendation of the National Judicial Appointment Commission (NJAC). Article 124-A was inserted providing for the constitution of NJAC comprising the Chief Justice of India, two senior most Judges of the Supreme Court, the Union Law Minister and “two eminent persons” to be nominated by a committee comprising the Prime Minister, the Chief Justice of India and the Leader of the Opposition. One of the two nominated members must belong to the Scheduled Castes, the Scheduled Tribes, OBC, minorities or women. However, in Fourth Judges case(2016), five-judge Constitution Bench of the SC struck down by majority SC the Constitution 99^th Amendment Act as unconstitutional and on the ground that the amendment impedes the independence of the judiciary which is a basic structure of the Constitution. The constitutional amendment that had sought to create the NJAC, in which a significant role had been envisioned for the executive in appointments to the higher judiciary. The Bench sealed the fate of the proposed system with a 4:1 majority verdict that held that the appointments of judges shall continue to be made by the collegium system, in which the CJI will have “the last word”.

Collegium - Lack of Transparency and Cohesiveness: Critics have pointed out that the system is non-transparent, since it does not involve any official mechanism or secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria, or even the selection procedure. There is no public knowledge of how and when a collegium meets, and how it takes its decisions. There are no official minutes of collegium proceedings. Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge. The collegium system of appointment and transfer of judges of the higher judiciary has been debated for long, and sometimes blamed for tussles between the judiciary and the executive, and the slow pace of judicial appointments.In the aforesaid scenario, one thing is for sure that the entire selection process for the appointment of the Supreme Court and the High Court Judges needs to be revisited. A system having checks and balances, transparency coupled with confidentiality, objective criteria needs to be in place.

Question #2. Election Commission is duty bound to act in a fair and legal manner and to abide by the provisions of the Constitution and the directions of the Court. "Democracy is inexplicably intertwined with power to the people... Democracy facilitates the peaceful revolution in the hands of a common man if held in a free and fair manner." Analyze the statement in light of the recent landmark judgment given in AnoopBaranwal v. Union of India (2023) case. What are the suggested reforms and how far are they significant to make democracy successful? 15 marks (250 words)

Recently, the Supreme Court held in a public interest litigation seeking that the chief election commissioner and election commissioners should be appointed by a three-member collegium. The collegium will comprise the Prime Minister, the leader of opposition in Lok Sabha and the Chief Justice of India. The Election Commission of India (ECI) is an autonomous constitutional authority responsible for administering Union and State election processes in India. The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, and the offices of the President and Vice President in the country.

Structure of the Commission: Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it has been made a multi-member body. The commission presently consists of one Chief Election Commissioner (CEC) and two Election Commissioners (ECs). The secretariat of the commission is located in New Delhi.

Analysis:

Historical demands for appointment of election commission

• The demand of collegium system was first raised in 1990 when the Dinesh Goswami Committee suggested the need for a selection committee or a panel to appoint the CEC (at that time ECI was a single-member body).
• Based on this recommendation, 70th Constitutional Amendment Bill, 1990was introduced in the Parliament which demanded for the selection committee comprising of the Presiding Officers of both Houses and Leader of the Opposition in Lok Sabha.
• However, due to lack of political will, it was not passed and was withdrawn in 1993. Till date, no such bill was formed.
• The issue was debated in the Constituent Assembly which finally left over to the government to decide the appointments. The constituent Assembly suggested that election commission should be appointed after a proposal of the same is supported by two-third majority of the parliament.
• Global Practice: In the USA, South Africa, Canada, etc. there is a mechanism for outside consultation with expert body for making suitable appointments.

Present System of Appointment of Election Commissioners:

Constitutional versus Executive Power of Appointment:

• There is no prescribed procedure for appointment of the Chief Election Commissioner and Election Commissioners as per the constitution. Under the Transaction of Business rules, the President shall appoint the CEC and EC based on the recommendations made by the Prime Minister.
• Therefore, it is the executive power of the President to appoint CEC and ECs.
• However, according to Article 324(5), the Parliament has the power to regulate the terms of conditions of service and tenure of ECs. It is under this article that the Parliament has made laws till date, and not under Art. 324(2) in which the Parliament can establish a selection committee for regulating the appointments made by the President.

Aberrations in Appointment:

• Constituent Assembly Debates: The issue was debated in the Constituent Assembly which finally left over to the government to decide the appointments.
• Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 was passed to determine the conditions of service of the Chief Election Commissioner and other Election Commissioners and to provide for the procedure for transaction of business by the ECI. However, the Parliament at that time decided not to put any collegium system for appointment.

Challenges in establishing a collegium system for appointments

• Similar Demand for other appointments: For other constitutional positions similar demand can be raised where it is the imperative of the executive to make such appointments like for Attorney General or Comptroller & Auditor-General. The government has the right to decide such appointments like it did for CBI director or the Chief Vigilance Commissioner But these are statutory positions. As of now, there is no committee for constitutional appointments.
• Constitutional Dilemma: According to Article 324(2), the President shall make the appointment till the time there is no law being made by the Parliament for this purpose. Because of the absence of such law, the possible statutory appointment process has been made a constitutional appointment (done under executive domain) by the President. Even in the debates of Constituent Assembly, it was argued that the appointments be made by the President in consultation with PM with the concurrence of two-thirds of the majority of the joint session of both the Houses of Parliament.
• Distinction between CEC & EC: There is a difference between the position of a CEC & EC. The appointments to both the position may differ according to the task they perform. Therefore, to differentiate the process of appointment which is still done on an ad-hoc basis (because of absence of any constitutional law) becomes a challenging task that needs to be addressed properly to ensure the independent working of the commission.
• Demand for Collegium System: In the recent past, this demand has gained prominence in the backdrop of allegations raised by political parties regarding the independence of the Commission. Therefore, it is due to political necessity and not legal conundrum that there is a demand for multiparty approach in appointment process.
• Judicial Overreach: The Supreme Court (SC) interprets any law on the basis of provisions of the constitution, and constitutionally decision for appointment procedure of EC comes under executive domain. Thereby, decision by the Supreme Court in this regard can possibly shake the harmonious balance of power.
• Deficiencies in the present system of appointment process needs to be removed. And adequate safeguards must be put into place to ensure that ethical and capable people head the concerned positions.
• Independence: There must be similar election and removal procedure for CEC and ECs, and they must exercise the same powers unless specifically prescribed by a law. Also the expenses of ECI must be charged expenditure on Consolidated Fund of India.
• Transparency: Appointments through collegium or any other system as discussed in constitutional debate can bring more transparency in the appointment process.
• Autonomy: Even, the Law Commission in its 255^th report on electoral reforms (2015) for ensuring greater autonomy to the ECI, recommended for the constitution of a selection committee.
• Legislation: There is a need for debate and discussions in the Parliament on the issue of independency of ECI and consequently passing of required legislation.
• Article 324(5) of the Constitution must be amendedto equate the removal procedures of the two Election Commissioners with that of the Chief Election Commissioner. Thus, equal constitutional protection should be given to all members of the ECI in matters of removability from office.
• The appointment of all the Election Commissioners, including the CEC, must be made by the President in consultation with a three-member collegium or selection committee, consisting of the Prime Minister; the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha in terms of numerical strength); and the Chief Justice of India.
• Elevation of an Election Commissioner must be on the basis of seniority, unless the three member collegium/committee finds such Commissioner unfit.
• Amendments must be made in the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 to reflect this.
• It also recommended, to add a new sub-clause as (2A) to Article 324 of the Constitution to provide for a separate independent and permanent Secretariat for the ECI along the lines of the Lok Sabha/Rajya Sabha Secretariats under Article 98 of the Constitution. This will further improve the independence of the ECI.

Conclusion: The present political questions on the institution of election commission must not be confused with the constitutional questions. The political problems need a political solution supported by a strong legislation. The collegium system no doubt will open way for independence and transparency in the working of the election commission but it will also develop a tendency to snatch what belongs to the executive.