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Ambedkar rejected collegium system, said CJI supremacy on judges’ appointment is dangerous

In May 1949, the Constituent Assembly debated the Collegium system, only to reject it thrice. Now the SC is assuming that role once again.

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In a move that further strengthens the deadlock between the Centre and the Supreme Court on the issue of appointment of judges, the Narendra Modi government recently sent back files pertaining to 25 names recommended by the top court collegium for appointment as high court judges across the country. Earlier, Justice Sanjay Kishan Kaul, the second senior-most judge of the Supreme Court, had expressed displeasure over the Centre’s delay in attending to the recommended names.

So what are the constitutional provisions for the appointment of judges to the Supreme Court and 25 high courts? And how did these provisions evolve during the Constituent Assembly debates, which could help us understand the position of the Constitution makers vis-a-vis the present collegium system.

According to Article 124(2) of the Constitution, “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.”

The collegium system altered the situation completely. The system evolved from the Second Judges Case of 1993 that involved a nine-judge bench. The collegium, i.e., the committee comprising the Chief Justice of India (CJI) and the four senior-most judges of the Supreme Court, sends recommendation for the appointment of a judge to the top court. For the appointment of a high court judge, the collegium comprises the CJI, two senior-most judges of the Supreme Court, chief justice of the said high court and two senior-most high court judges.

As per the 1993 judgment, the final recommendation made by the collegium is binding upon the Government of India for three reasons. One, the appointment of judges is an ‘integrated-participatory-consultative process’. It must be initiated by the collegium to preserve the independence and separation of the judiciary from the executive. Two, because the word ‘after consultation’ with the CJI/judges occurs in Article 124(2) and 217(1) of the Constitution, the primacy in the judges’ appointment doesn’t lie with the President. The latter cannot govern the appointments to the higher judiciary under the aid and advice of the Union Council of Ministers with the prime minister at its head. And finally, because the judges are more equipped to decide upon the suitability of the candidates for constitutional courts and their consultation is mandatory, their opinion cannot be disobeyed/brushed aside by the President.

This judgment altered the meaning of “in consultation” with the CJI to “in concurrence” with the CJI and the collegium. Without the concurrence and conformity of the collegium, no judge can be appointed by the President. It will be interesting to look back and find out what happened during the Constituent Assembly debates.

Also read: Modi govt and SC are locked in a battle where each wants to set the boundary for the other

What happened early on

The Constituent Assembly of India, which enacted and adopted the Constitution, debated the current Article 124 (then Article 103 of the draft Constitution) on 23-24 May 1949. On the first day, B. Pocker Sahib, a lawyer from erstwhile Madras, introduced an amendment to the article, providing that the CJI shall initiate the proposal for the appointment of judges and suggested the substitution of word ‘consultation’ with ‘concurrence’.

“The Chief Justice should send his recommendation on that behalf directly to the President. After consultation with the Governor, the President should make the appointment with the concurrence of the Chief Justice of India. I wanted to see that the appointment of the judges of the Supreme Court is not in any way affected by political influences,” Pocker argued.

The Constituent Assembly debated this amendment the following day and rejected it by voice vote.

A similar amendment was introduced by Mahboob Ali Baig Sahib. It provided for giving veto power to the CJI on the appointment of judges. The amendment suggested that the substitution of “The Chief Justice of India shall always be consulted” occurring in Article 124 with “It shall be made with the concurrence of the Chief Justice of India”.

“Under our proposed Constitution, the President would be the constitutional head of the executive… the President would be guided by the Prime Minister or the Council of Ministers who are necessarily drawn from a political party. Therefore, the decision of the President would be necessarily influenced by party considerations,” he argued.

This amendment was also debated and rejected by voice vote on 24 May 1949.

T. Shah moved an amendment which sought to add anew Article 102-A in the Constitution for the ‘independence and separation of judiciary’. His amendment read: “[Article]102-A. Subject to this Constitution, the Judiciary in India shall be completely separate from and wholly independent of the Executive or the Legislature.”

Drafting Committee chairman B.R. Ambedkar expressed strong displeasure on Shah’s amendment, which was introduced, debated, and voted upon by the Constituent Assembly. It, too, was finally rejected.

Also read: Khehar to Chandrachud—attacks on CJIs show pattern as they assert judiciary’s independence

Ambedkar’s point of view

Responding to the debates and amendments introduced in Article 124, Ambedkar delivered a lengthy speech. “I find three different proposals. The first proposal is that the judges of the Supreme Court should be appointed with the concurrence of the Chief Justice. There can be no difference of opinion that the judiciary must both be independent of the executive and must also be competent in itself,” he said.

While referring to the idea of appointment of the judges ‘with the concurrence of CJI’, Ambedkar said, “With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to veto is the President or the Government of the day. I, therefore, think that is also a dangerous proposition.”

Therefore, the idea that the CJI-led collegium has primacy because the word ‘consultation’ occurs in Article 124 and amounts to ‘concurrence’ and that the Collegium’s role is essential in making the judiciary independent is nothing but a rewriting of the Constitution and giving veto power to the CJI. It is the same idea that the Constituent Assembly expressly rejected by voice vote decades ago.

By introducing this concept, the Supreme Court is assuming the role of the Constituent Assembly, which was led by some of the nation’s key figures—Ambedkar, Nehru, Patel, K.M. Munshi, Jaipal Singh Munda, Ganesh Vasudev Mavalankar, Pattabhi Sitaramayya and the first President of India Rajendra Prasad.

Nitin Meshram practices law in the Supreme Court and various High Courts. He tweets at @meshramnitin_. Dilip Mandal is the former managing editor of India Today Hindi Magazine, and has authored books on media and sociology. Views are personal.

(Edited by Humra Laeeq)

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