In the last 67 years India has matured in many ways, leaving the inconvenient ones at bay, it can be said that the country has made tremendous progress and has established itself as world’s next superpower. No country has progressed without setting some benchmarks for it; no reforms could be brought about without having a free will. India is a land where ideas are found in abundance & philosophies in multitudes, still our judicial system has been questioned every now & then, often by the common man & very often by the very own watchdogs of the law of land.
The issue of Collegium System for the appointment of Judges to the Indian courts is one such issue which has been lying on debate podiums since long. This system, followed in the appointment of judges to the Supreme Court and other high courts has recently been challenged in the Supreme Court. A Rajasthan based trust wants the court to declare the system ‘ultra vires’ and ‘unconstitutional’ because the constitution does not mention it anywhere and it has been brought into existence through the judgments of the supreme court. The bench, which heard the matter, referred it to the Chief Justice of India for appropriate direction as the petition raised complicated legal issues. The government has said that the matter required reconsideration and has gone for hibernation since then, this clearly has some grey matter inside as the absence of a free will is prominent in the stand government has taken. There are no set time frames so that such complicated legal issues could be promptly redressed, that is certainly very unfortunate for the citizens as well as the lawmakers of the biggest democracy of the world.
Drawing upon the arbitrary system of the collegium system, Hon’ble Advocate of the Supreme Court Kislay Pandey says, “The Collegium System is constituted for the appointment of large number of welfare of the people at large; under which substantially serious & sensitive decisions are taken for the people welfare. Hence it must be untouched of any political influence in order to ensure the fair appointments for the said posts and monopoly of any one special. We must not allow any arbitrary decision for Collegium that may result to any disaster to the ultimate ends of justice.”
Two significant verdicts of the apex court in Advocate on Record Association vs. Union of India and Others’ (1993) and Special Reference No 1 of 1998 that have established the primacy and supremacy of the collegium system in the appointment of judges to the higher courts have been recently challenged by a non-governmental organization. This has ultimately placed the neutrality of this system under scanner, the collegium which the critics call as judges appointing themselves, comprises four senior most judges in the supreme court and the Chief Justice of India and three more senior most judges in a particular high court including its chief justice.
On the other hand, a member of the higher judiciary, which means the Judges and Chief Justices of the Supreme Court of India and the state High Courts, can be removed from service only through the process of impeachment under Article 124 (4) of the Constitution on grounds of proven misbehavior or incapacity. As per the Judges Inquiry Act, 1968, a complaint against a Judge has to be made through a resolution either by 100 members of the Lok Sabha or 50 Rajya Sabha members. After the MPs submit a duly signed motion to this effect to their respective presiding officers, Chairman of the Rajya Sabha or Speaker of the Lok Sabha, the presiding officer constitutes a three-member committee comprising two Judges, one from the Supreme Court and one Chief Justice of a High Court if the complaint is against a HC Judge; and two Supreme Court Judges if the complaint is against a sitting Judge of the apex court and a jurist to probe the complaint and determine if it is a case fit for initiating the process of impeachment.
This team can involve any independent agency, either from the government or the private sector, to investigate the charges, before making a recommendation to the House. Thereafter, if the committee has concluded that impeachment proceedings be launched, the matter is debated in both Houses of Parliament. The Judge who is facing impeachment is also given the opportunity to rebut the charges, either in person or through his representative. The Supreme Court of India has been revered as the temple of justice for the role it has been playing in the life and governance of the nation. The system of impeachment of judges serves as a gateway of intrusion for the manipulations to creep into the judicial framework of the country. However, the entire process; debate onwards, has to be completed within a single session of the House, failing which the motion is deemed dropped and can only be taken up if the entire process is repeated afresh in any subsequent session. In India, there is no other process by which a Judge can be removed from office before his term comes to an end.
However, like all other government processes, this too is cumbersome. “The Collegium”, says Pinaki Mishra, in the Supreme Court of India, “should have been selected by unanimous choice rather than by brute majority as has been done. It’s a controversial start to the effort which could easily have been avoided.”
There is a growing resentment amongst the intellectual capital of the nation about the delay in judicial reforms, India needs today. There should be uniformity; either it is collegiums for appointment or the process of impeachment, so as to maintain the sanctity of law & jurisprudence. It is high time to bring about the changes our system needs so that India lives up to the expectations of its founding fathers.
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