“India has taken a step backwards by retaining the collegium” – Senior Advocate KK Venugopal

Four days ago, a Constitution Bench of the Supreme Court struck down the 99th Constitutional Amendment Act, leading to the revival of the collegium system of judicial appointments..In this interview with Bar & Bench, Senior Advocate and Constitutional law expert, KK Venugopal, who appeared for State of Madhya Pradesh, shares his thoughts on the judgment and how India has taken a step backwards by retaining the collegium system..Bar & Bench: Initial comments?.KK Venugopal: I will preface my approach by quoting from Justice Harlan of the U.S. Supreme Court. While addressing a group of law students, this is what he said,.“I want to say to you…that if we do not like an Act of Congress, we do not have much trouble to find grounds for declaring it unconstitutional.”.This is exactly what has happened in the present case. The judges were deciding on an issue relating to their own powers and jurisdiction. It was an issue which would place the judges in a position of superiority not only over the Executive, but over Parliament, not only over Parliament in its normal exercise of legislative power, but Parliament exercising the organic power of amendment of the Constitution..What is unique and remarkable in the present case is that the entire House of the People and the entire Rajya Sabha passed the Constitutional amendment and the NJAC Act unanimously, with the dissent of just one member. The will of the people, therefore, jettisoned the collegium system and desired that there should be a more balanced system through which the Executive and civil society would also have a voice. The Constitution Bench was not prepared to accept this..B&B: Could you elaborate?.KKV: Let us first look at the intention of the founding fathers. Article 124, which is the one in issue specifically confers the power of appointment on the President, i.e. on the Executive..It says,.“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 as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years.”.It is clear that the power of appointment was vested by the founding fathers in the Executive, headed by the President, on the aid and advice of his Council of Ministers. The Chief Justice and the judges of the Supreme are only consultees, whose opinion had to be given due weight by the Council of Ministers. It was the President who had to decide as to who among the judges of the Supreme Court and the High Courts should be consulted by him..B&B: But what about the argument that excessive Executive control in judicial appointments would be harmful to the country?.KKV: It should be remembered that so far as India is concerned, we have adopted the Westminster system of government, where all the three departments of government, are equal and co-ordinate departments. None among them would have a primacy over the others. The founding fathers had to decide regarding each action or function under the Constitution, as to which should be the organ of the state in which the power will be vested. Under Article 124, that power was vested in the Executive..The judges, however, did not accept the Constitution as it stood or its plain words and meaning. In the first instance, they sought to read ‘consultation’ as ‘concurrence’. Later, they overruled a 7-judges bench decision of the Supreme Court, which held that primacy was not with the Chief Justice of India, but with the Executive and conferred that primacy on the Chief Justice. In a later judgment, holding that the Chief Justice of India should not be entrusted with the entire responsibility by himself, the Bench of 9 judges created the collegium of five judges..“We are under a Constitution, but a Constitution is what the judges say it is.”.The net result was that Article 124 was turned on its head and this would remind me again of a statement by Justice Charles Evans Hughes of the Supreme Court, who later became the Chief Justice:.“We are under a Constitution, but a Constitution is what the judges say it is.”.B&B: And you think this is what has been done with Article 124?.KKV: Exactly! Article 124 has lost its original, pristine character by a series of interpretations by the judges who gradually, step by step, rewrote the entirety of Article 124 and effectively transferred the power of appointment from the Executive to the Judiciary..B&B: And you are saying the NJAC would un-do this “rewriting”?.KKV: The [99th Constitutional] amendment had brought about a balance, where three judges would decide on the appointments along with the Minister for Law and Justice, as well as two eminent persons. The ‘eminent persons’ would represent civil society and would also bring about transparency, as their presence would ensure that there would be no exchange of candidates by the judges and the Minister for Law and Justice. A veto is given to two among them, and their veto would not result in an impasse or a stalemate, as always, another person could be thought of and considered by the Commission..B&B: So you are saying the Executive must have a role?.KKV: One has to remember that the NJAC was brought in to bring about light and transparency to the appointment process, instead of the collegium making its own decisions behind closed doors..The Memorandum of Procedure for appointment [of judges] was referred to in the majority opinion [of the NJAC judgment]. But a careful perusal of the Memorandum of Procedure in regard to appointment of Supreme Court judges would show that the Executive had no voice at all..On the other hand, a proposal would emanate from the collegium and the appointment would be forwarded to the Law Minister, who would in turn forward it to the Prime Minister, who would advise the President. It was open to the President to return the nomination once, but if it was re-sent by the collegium, he was bound to issue the warrant of appointment, irrespective of any reservation whatsoever of the Council of Ministers on the basis of information in their possession..B&B: With the end result being?.KKV: The creation of the collegium through the process of judicial adjudication has done great harm to the checks and balances provided by the Constitution of India. The ultimate result is that it is not the independence of the judiciary which has been preserved, but on the other hand, it is the transparency which should exist in such appointments which has been sacrificed..It is unfortunate that when every other country in the world gives some space to the Executive in the matter of appointment of judges to the higher judiciary, and in some cases, the exclusive right of appointment, India has taken a step backwards and has retained the power exclusively to the judicial wing of the state..This is wholly contrary to the democratic basis on which the Constitution rests and is wholly opposed to the separation of powers, where each one of the branches of government is equal and co-ordinate in regard to its functioning.