Why does the SC Collegium hold primacy over appointments and transfers?
Context:
- The government’s unilateral delaying or segregating of names, recommended by the Supreme Court Collegium, is affecting effective justice administration as posts remain vacant without end.
- Appointments and transfers of judges in the constitutional courts is a participatory consultative process between the Supreme Court and the government. While the need of the hour is to fill up judicial vacancies for effective justice administration, the primacy of the Collegium to recommend names for elevation to the Supreme Court and appointments and transfers in high courts, is affected by what some legal experts term as “cherry-picking” on the part of the executive.
Judicial appointments: Constitutional Provision:
Article 124: Establishment and constitution of Supreme Court:
- “There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.’
- 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 and shall hold office until he attains the age of sixty-five years.
- Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
Judicial appointments in India: current status:
Appointments to higher judiciary is currently effectively regulated by the ‘collegium’ mechanism where the executive plays a minor role. ‘Collegium’ is an in-house mechanism of higher judiciary in India, created for the appointment and transfer of judges, that has evolved through judgments of the Supreme Court (SC), and not by any Act of Parliament or Constitutional provision.
Evolution of the Collegium System:
1. First Judges Case (1981):
- It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
- The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
2. Second Judges Case (1993):
- SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
3. Third Judges Case (1998):
- SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues while HC collegium is led by its Chief Justice and four other senior most judges of that court.
- Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
- Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
Executive challenge to the collegium system :
- In 2014, Parliament by unanimity backed by State legislatures enacted the National Judicial Appointments Commission (NJAC). It comprised of three judges, the Law Minister and two eminent persons. By the 99th Constitutional Amendment Act, 2014, the National Judicial Commission Act (NJAC) was brought in to replace the collegium system for the appointment of judges. NJAC restored to some extent the executive primacy in judicial appointments, as envisaged by our Constitutional makers. NJAC was established to achieve greater transparency and accountability for the appointment of judges.
- But it was struck down by the Supreme Court on the grounds that it was against the “Independence of Judiciary” one of the ‘Principles of Basic Structure’ which was held to be inviolable by the SC in Keshavananda Bharati case.
Elevations and transfers in higher judiciary of India:
Constant segregation and delays:
- Justice Muralidhar’s transfer as the Chief Justice of the Madras High Court was recommended by the Collegium to the government along with the name of Jammu and Kashmir High Court Chief Justice Pankaj Mithal. Both names were proposed jointly in a single batch. However, the government chose to notify Justice Mithal’s transfer to the Rajasthan High Court while keeping an ominous silence about Justice Muralidhar.
- The juggling of names at the government’s end not only affects the primacy of the Collegium, but also impacts the seniority of a judge and even his/her prospects to be appointed to the Supreme Court. But Justice Muralidhar’s case is not the first such incident. In the past, the government has unilaterally segregated names recommended by the Collegium.
- Ex- Chief Justice Lodha has said the collegium was the “final arbiter of judicial appointments”. He said that the government’s segregation of the Collegium’s list amounted to “tinkering”. He had maintained that prior consultation with the CJI before segregation was the “integral component of the primacy of the Collegium”.
The mandate of the Collegium after the Three Judges Case:
- In this case, Supreme Court (SC) interpreted ‘consultation’ of President with CJI as ‘concurrence’ while appointing judges, established the primacy of the Collegium, led by the CJI, in making judicial appointments. ‘Chief Justice of India’ here means the collective opinion of the Collegium. Giving primacy meant the ‘CJI’ was best equipped to know and assess the worth of a candidate for appointment as a superior judge. The executive had at best the power to act as a “mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose”.
Seniority among judges:
- The Three Judges Case also recognised the significance of maintaining the “inter-se seniority amongst judges in High Courts, based on the date of appointment, and their combined seniority on an all-India basis”. The Constitution Bench had held that “unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court”.The way out of the imbroglio would be to introduce checks through the Memorandum of Procedure (MoP) against unilateral segregation by the government. A new MoP could also bring in a clause to clear names for judicial appointments within a reasonable time to avoid delay.
Conclusion:
The author of the article has argues for preserving the primacy of judiciary in appointments, elevation and transfers of judges, while keeping the executive element in the appointment process to the minimum to prevent any undue political influence on justice system.
Hindi imposition and its discontents
Context:
Recently the Parliamentary Committee on Official Language has recommended to use Hindi as the medium of instruction in Central institutions of higher education in Hindi-speaking States and regional languages in other States. It has once again ignited a controversy over ‘an attempt to impose Hindi on non-Hindi speaking people’, as alleged by some regional leaders like Chief Ministers of Tamil Nadu and Kerala, who have voiced their concerns over the recommendation.
Official language:
An official language is one that has been granted special status by a country, state, or other entity. Typically, the word “official language” refers to the language used by a government for example court, legislature, and/or administration.
Constitutional Provisions:
- The Constitution states that, till 1965, English shall continue to be used for all official purposes of the Union. This is mainly because complete replacement by Hindi was not expected within the short time.
- Article 343: “The official language of the Union shall be Hindi in Devanagari script.”
- For official purposes, the international form of Indian numerals shall be used.
- Also according to Article 345, the legislature of a state may adopt any one or more of the state’s official languages, including Hindi, like the language or languages to be used for all or some of the state’s official purposes. There is also no compulsion for the state to choose the language from the Eighth Schedule of the Constitution.
- In the eighth schedule of the Indian constitution there are 22 languages that have been recognized (Originally 14 languages were mentioned).
Statutory provisions: Official Languages Act (1963) :
- This act provides that English should be the communication language between the Union and the non-Hindi states. The act also provides that, The communication between Hindi and Non-Hindi states if done in Hindi then it must be accompanied by an English translation.
- If a demand is made to the president and he is satisfied that a substantial proportion of the population of a state wish to use any language spoken by them to be recognized by that state, then he may direct them to recognize that language as an official language of the state. The main objective here is to protect the linguistic interests of minorities in states.
Background: the Hindi imposition row:
- The origin of the linguistic row goes back to the debate on official languages. In the Constituent Assembly, Hindi was voted as the official language by a single vote. However, it added that English would continue to be used as an associate official language for 15 years. However, as early as in 1959, Jawaharlal Nehru had given an assurance in Parliament that English would continue to be in use as long as non-Hindi speaking people wanted it.
Opposition in Tamil Nadu against Hindi:
- Tamil Nadu has had a long history of agitations against “Hindi imposition”. In 1937, E.V. R. Naicker or Periyar of Justice Party, spearheaded an agitation against the move of the regime headed by C. Rajagopalachari in Presidency of Madras to make Hindi compulsory in secondary schools.
- The British government, in 1940, made Hindi optional. In January 1965, the second round of agitations erupted in the wake of Hindi becoming the official language of the Union government coupled with the approach adopted by the Central government towards the whole issue.
- At different points in time, leaders, starting from Jawaharlal Nehru in the mid-1950s, assured the people of Tamil Nadu that there would be no “imposition” of Hindi. However, in recent years, be it the National Education Policy or reports of English signage on National Highways in the State getting replaced with Hindi signage, the political class of the State had overwhelmingly expressed its reservations.
| Reading between the lines:Some analysts have interpreted the recent moves by the union government as a way of implementing the idea of ‘homogenisation of culture’, in line of the earlier slogan of ‘Hindi, Hindu, Hindustan’. However, the opponents of such homogenisation drive insist on preserving India’s ‘Unity in Diversity’, which sees different language and culture as strengthening unity and integrity of the country instead of weakening it. |
The present proposal :
- It is being reported in media that English, as a medium of instruction in all technical and non-technical institutions, will be permitted only where it is absolutely essential, as the idea is to replace the language gradually with Hindi in those institutions.
- While IITs, IIMs and All India Institute of Medical Sciences are considered technical institutions, Kendriya Vidyalayas and Navodaya Vidyalayas fall under the other category. Also, the committee has recommended the removal of English as one of the languages in examinations held for recruitment to the Central services. It has stated that the requisite knowledge of Hindi among candidates should also be ensured.
Alternatives suggested by critics of the proposal :
- Both Mr. Stalin and Mr. Vijayan have called for equal treatment to all the languages specified under the Eighth Schedule of the Constitution. The Kerala Chief Minister has specifically stated that question papers for competitive examinations should be prepared in all the languages while his Tamil Nadu counterpart has urged the Centre to promote all languages and keep open the avenues of progress in terms of education and employment equal to speakers of all languages.
Conclusion:
- Government should examine the recommendations of the Parliamentary Committee on Official Language to balance the needs of both promoting the use of Hindi as well as the regional states’ demands of linguistic autonomy and depoliticisation of the language issue.
