whether collegium needed or not for appointment of judges?

A Collegium Means "An executive council or committee of equally empowered members, especially one supervising an industry, commissariat, or other organization.The Supreme Court of India today is regarded as one of the most powerful courts in the world. This because of its ability to make and enact law, declare it unconstitutional and lastly to create procedures for its own administration in a manner that may not have mention in the Constitution.The Supreme Court in 1993 held that under the Constitution of India, no appointment of any judge can be made unless it is in conformity with the opinion of the Chief Justice of India.{One must understand that the whole idea of a collegium and the Supreme Court regulating its own appointments emanates from the phrase ‘independence of the judiciary’. In a host of cases, this principle has been held to be a part of the basic structure of the Constitution and in what seems to be quite ridiculous, the Court apparently feels that its independence would be taken away if the executive and legislature have a say in appointments, even though the Constitution may require so}. Under the garb of this independence, the collegium has been created and justified thus demonstrating its power and showing the President as a mere puppet who is obliged to go by the Chief Justice’s recommendation.On Sunday, Oct 25, 2009, the Hindu newspaper had an article that “Government must have say in judges appointment”The statement calls for changes in the collegium procedure of appointment of judges. “The government and the collegium should work hand in hand while appointing judges, so that the difference between the two does not lead to delay in appointment. The government should also be given the power to suggest outstanding lawyers and jurists as judges.It said the increased strength of collegiums “has made the consultation process cumbersome and hence there is a delay in the selection and elevation of judges. There are no guidelines dealing with situations of a deadlock or lack of consensus among the members of the collegium, or dealing with situations where the majority of members disagree with the Chief Justice of India (CJI).” Therefore, the statement suggested comprehensive guidelines which the collegium should follow. “The executive and the legislature must take the initiative in recommending the best possible talent for selection to the judiciary. The collegium should be given a timeline to clear the backlog in vacancies.”CJI K.G. Balakrishnan,said: “As far as appointments to the Supreme Court are concerned, we are bound by the procedure in accordance with the Constitution Bench decisions given by our predecessors in 1993 and 1998. The proper forum for suggesting changes to the appointment process is Parliament. It would, of course, not be proper for me to enter the debate at this stage.”link http://www.thehindu.com/2009/10/25/stories/2009102560850900.htm. Senior Advocate Dr. Shyamlha Pappu raises some vital questions: should we restore the 1982 judgment, which was the starting point of the collegium or do we accept the primacy of the Chief Justice and the power of the executive for the appointment of judges. The beginning and end of judicial reform is the appointment of the right kind of judges, be it in the Supreme Court, the High Court or the subordinate judiciary. The appointment of judges is the prime and foremost link in the chain of judicial reform. As Justice Bhagwati would say, a right appointment “would go a long way towards securing the right kind of judges who would invest the judicial process with significance and meaning, for the deprived and exploited sections of humanity.”

Articles 124 and 217 of the Constitution are relevant for the issue under consideration. Article 124 (2) provides for the appointment of a judge of the Supreme Court by the President, after consultation with the judges of the Supreme Court and the High Courts in the states, as the President may deem fit, who shall hold office till attainment of the age of sixty five years, provided that in the case of the appointment of a judge, other than the Chief Justice, the Chief Justice of India is mandatorily consulted.Article 217 of the Constitution, likewise provides for the appointment and conditions of service of a High Court judge, who is appointed after consultation with the Chief Justice of India, the Governor of the state and in the case of appointment of a judge other than the Chief Justice of the High Court, the Chief Justice of the High Court, and shall hold office till he attains the age of sixty two years. Subordinate courts fall within the control of the High Court of the state under the Act 235 of the Constitution, and the appointment of judges to these courts is made by the Governor of the state in consultation with the High Court, exercising jurisdiction in relation to the state, under Acticle 233 of the Constitution. This is the procedure as per the constitutional text. This procedure, however, underwent a change after the three pronouncements of the Supreme Court, which need to be considered for a fuller and more incisive understanding of the present scenario and its effect on the selection and appointment of judges.

In SP Gupta’s case, which we will call the 1st judges case, for facility of reference, the Supreme Court considered the question of transfer of a judge from one High Court to another court, without ascertaining his consent and the non-confirmation of an ad-hoc judge, the issues being crucial for the cardinal principle of ‘Independence of Judiciary’. The decision of the majority of the seven judges, affirmed the power of the executive to decide these issues and dismissed the petitions. The question of initial appointment of judges was nowhere in issue, but the majority judgment, holding that the expression ‘consultation’ used in Art 124 (2) and 217 of the Constitution did not mean ‘concurrence’, declared that the Executive could appoint a judge, even if the Chief Justice had different views in the matter. Justice Bhagwati, delivering the majority judgment, also held that ‘consultation’ with the Chief Justice would mean that there should be a ‘collegium’to advise the Chief Justice. It was, however, not spelt out as to what should be the composition of the collegium, at this stage. It was also held that the solitary view of the Chief Justice would not constitute ‘consultation’ within the meaning of Articles 217 and 224 (2).

Thus, the expression ‘colleguim’ came to be used for the first time in paragraph 29 of the judgment and it was a virtual insertion into the Constitution. “In matters relating to appointments in the High Courts, the Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court, which are likely to be conversant with the affairs of the concerned High Court. The Chief Justice may also ascertain one or more senior judges of that High Court, whose opinion according to the Chief Justice of India is likely to be significant in the formation of his opinion…The opinion of the Chief Justice of High Court must be formed after ascertaining the views of at least the two senior most judges of the High Court”. The court also clarified that “the views of the other judges consulted should be in writing and should be conveyed to the Government of India by the Chief Justice of India along with his views... It is also to be argued that the collegium has now to consist of four (instead of two) seniormost judges of the court in the appointment of a High Court judge. The Supreme Court judge, acquainted with the particular High Court is also to be consulted, raising the number to six. The increased number of consultees has made the consultation process cumbersome and delays in filling up vacancies are bound to occur. Every communication has to be in writing and the views of the consultees are to be communicated to the government. According to a ruling by the SC, the government is bound by the recommendation of the SC collegium vis-a-vis the appointment of judges of the SC and high courts and chief justices of high courts. Until 1982 (First Judges Case), Supreme court held that consultation of president does not mean concurrence (meaning, Agreement of results or opinions). But in 1993 (Second Judges case), a nine judge bench of supreme court held that consultation means concurrence. So, if "consultation means concurrence", then, both government and the supreme court must mutually agree in the matter of appointment of judges. Supreme Court opined that, members of the judiciary are well qualified than others to give their opinion in the matter of appointing judges. In that historic judgment, Supreme court had virtually arrested the irregularities in the appointment of judges to supreme court. In fact, the judgment has made appointment of judges more transparent than ever. Supreme Court laid down a clear procedure in appointing judges. Here is a quick look,

1. The collegium comprising of Chief Justice of India and four senior most jusdges of the Supreme court has to be formed to render advice to the president (i.e. to the government).
2. View of the senior most judge (if he is not the part of the collegium) who hail from the High court where the person to be recommended (as judge to supreme court) is functioning as judge, must be obtained in writing.
3. The collegium must consider the following factors in recommending the judges for the appointment
• Merit should be the predominant consideration. On what basis the merit will be judged? Earlier judgments given by the judge, respect he commands in the legal fraternity, his legal qualifications, and any such considerations.
• Not only that, Cogent and good reasons should be recorded for recommending a person of outstanding merit regardless of his seniority.
• "For recommending one of several persons of more or less equal degree of merit, the factor of the High Courts not represented on the Supreme Court, may be considered."
• And any such factors may deem necessary.
  
4. Supreme court then prepares it's recommendations, everything in writing, stating all the factors cogently and with significant reasoning.
   
5. If two or more members of the collegium disagree with the names (to be recommended), then Chief Justice of India should not persist with the recommendation. If the collegium agrees to the names, the recommendation is sent to the executive.
   
6. Constitutionally, Supreme Court's recommendation is not binding on executive, so the executive may refuse to accept the candidates recommended by supreme court for the appointment. But government must provide genuine reason for it's refusal. In case govt accepts Supreme court's recommendations, matter ends there, the judges will be appointed as recommended.
   
7. If the government refuses to appoint the person recommended by supreme court, the materials and information conveyed by govt must be placed before the original collegium or the reconstituted one.
8. If the collegium accepts the opinion of executive, then CJI, in his discretion, informs the person earlier recommended for his non appointment. The names recommended by executive will then be final for appointment.
   
9. In case collegium refuses to reconsider the request (as it happened now) and unanimously reiterate that the appointment of recommended candidates must be made, then, government (President) has no choice but to appoint them.

Thus, the procedure seems to be transparent if one look at it without any bias. If the government think that it is smarter than Supreme Court and if Supreme Court is adamant with it's recommendation, then the conflict arises and harmony is lost between the organs of democracy.