”Judges appoint Judges” – a true statement.

B.V.Acharya, Senior Advocate and former Advocate General

The statement of CJI (Hon’ble Justice N.V. Ramana) that the “Judges appoint Judges”  to the higher judiciary is not correct is an assertion which has not only the effect of creating a totally wrong impression in the minds of the public but also contradicting the statement of the President of India. In fact a suggestion that the present collegium system in which “ Judges appointing Judges” requires reforms was made by no less a person than the President of India Ram Nath Kovind in his valedictory address in “Constitution Day” celebration and this was in the presence of CJI. In the present Collegium system of appointment of judges, which is in vogue since 1993 when second Judges case was decided,   it is the judges only who appoint judges.  It does not mean that in the procedure followed, none is consulted or that the process does not involve any other persons views or recommendations. 

The proposal will originate from Chief Justice of the High Court and the same  will no doubt, pass through the Chief Minister, Governor and the Central Government (including Law Minister or the Prime Minister), but none of them have any say in the matter of final selection of the candidates. According to the decision of the Supreme Court in the second and third judges case, the final decision of the Collegium (consisting of three judges in the case of appointment to a High Court and five judges in the case of appointment to the Supreme Court) is binding not only the Central Government but also on the President of India in whose name the warrant of appointment is issued.  Only right the Central Government has got is to refer the matter back to the Collegium for reconsideration of the decision, and if on such reconsideration, the Collegium reiterates the earlier decision, then there is no option left to the Government or the President, except to ultimately issue warrant of appointment as decided by the collegium. Only privilege the Central Government has is to delay the process which has been resorted to in some cases.  In such a situation, is it not correct to say “Judges appoint Judges? “

 Until 1993 when the second judges case was decided, it is the Central Government which had the ultimate power to appoint, without being obliged to follow the opinion of the CJI or other Judges of the Supreme Court consulted by it.  The only obligation on the part of the Central Government was to consult the CJI. In second judges case, by misinterpreting the expression  ‘consultation’, the Supreme Court held that in the context consultation  actually means concurrence and in case of difference of opinion between CJI and Central Government, the opinion of the CJI will prevail, as according to it, he has primacy in the matter. The Supreme Court virtually usurped the ultimate power of the Central Government and vested the same in its collegium. Further the Supreme Court without any basis in the Constitution, introduced the system of Collegium of Supreme Court Judges which is conferred with the sole power to decide on the selection of judges. Thus the Collegium system had its birth, which many Jurists consider as not legitimate.

 If the CJI is interested in solving the problem and having a fair and transparent system of selection of judges, he should constitute a Bench to over-rule the majority judgment in the NJAC case and uphold the validity of 99th Constitutional Amendment and NJAC Act which will replace the much maligned Collegium System.