During the British era, India went through a whole lot of experimentation and learning in the field of administration of justice. Many judicial mechanisms were established and many were scrapped and replaced with other mechanisms. The British Rule had a few positive effects on our legal system making it fair and impartial where the judicial body must be separate from the other organs of the state.The Supreme Court, over the years, has played a significant role in the evolution and interpretation of the Constitution in keeping with the needs of the time.

Transgressions of Supreme Court into the Executive domain became more pronounced after the emergency, when the Court became keen to reassert its independence. This finally led to the Collegium system of appointment of judges in 1993 whena nine-judge bench of the Supreme Court changed the practice of “after consultation with” to “after concurrence with” in Article 124(2) of the Constitution, taking away the executive's say in the appointment of judges, in the matter of Second Judge Case (1993).
At the same time, allegations of subservience, corruption and recently, of depraved behavior, have dented the image ofthe Bench. The Court is also being weighed down by the pressure of mounting arrears of cases and there being no concrete effort in sight to speed up the disposal toarrest the ever- increasing pendency. Besides - these factors, after the 1993 judgment, when the Collegium system acquired absolute authority in the matter of appointment and transfer of judges of High Courts and Supreme Court, certain appointments ex- facie did not seem to measure up to the requiredstandard in the estimation of members of legal fraternity. The collegium invited adverse criticism, albeit in a hush-hush tone. Subsequently, the allegations of nepotism and favoritism in the appointment of judges also started doing the rounds.The criticism stoked bysuch allegationsas well as the desire to bring about absolute transparency in the system of selection of judges, perhaps, prompted the NDA Govt. to playa proactive role to set all doubts at rest.
The Govt. by amending the Constitution of India through 99th Constitution Amendment Act 2014, established the‘National Judicial Appointment Commission(NJAC)’. This Act was challenged in the Supreme Court through a bunch of petitions.On Oct.16,2015, the five-judge bench ruled with a 4:1 majority, that the NJAC was “unconstitutional” and violated the “basic structure of the Constitution”. With the annulment of this Act, the role of Govt. was once again, reduced tovirtually ‘no say’ in the appointment of judges. The present Govt. however, refused to be a meek spectatorand returned certain recommendations for reconsideration by the Collegium, along with the grounds which the Govt. considered were all too important to necessitate reconsideration of the particular recommendation(s)’. This was not taken kindly by the Supreme Court, rather it wasapparently construed as an unwarranted intrusion in the domain of appointment of judges, by the Collegium. The conflict gave rise to a simmering discontent between the Govt. and the CJI. In the recent past, unsavory observations were tradedfrom both sides, each side trying to justify its stand. Once the NJAC was repealed, the Supreme Court Collegium deemed itself all powerful and did not take positivelythe advice of Govt. for reconsideration of some of their recommendations despite the fact that the Govt. had also placed before the SC,material held on record and relied upon by it for referring the matter back. So much so, even the Vice President jumped into the fray, supporting the stand of Govt. The CJI shot back, saying that so long as the present legal position is not changed, the existing system of Collegium will prevail. While the controversy is still on and there seems to be no sign of its early resolution ,recently, the Govt.,yet again, remitted back recommendations in respect of five members of the Bar along with the material that helped the Govt.in reaching such a conclusion.
The Supreme Court, in its bid to prove itself holier than though,dissected the reports of intelligence agencies and made them public. The Supreme Court has, however, never placedon public domain the reasons that persuaded the Collegium to select a particular lawyer. The Supreme Court considers the selection proceedings of Collegium very sacrosanct but the same sanctity is not accorded to the Govt.communication. The Govt. also wrote to the CJI, suggesting that at least one member from the Govt. should also form a part of Collegium. This suggestion also met the same fate.While the Supreme Court hasreasserted their standfor continuation of existing Collegium system with full force, till the system is not changed by due process of law.The Govt., on the other hand, is not inclined to accept the stand taken by the Supreme Court. As a result, the issue has snowballedinto a major tension, leading to allegations and counter allegations from both sides.With every passing day, the issue is becoming murkier. And now, whenthe politicians have also joined the bandwagon to serve their narrow ends, there is a possibility that the core issue may be drowned in in the controversy,
Be that as it may, given the views expressed by former judges,Constitutional Courts, and eminent jurists, that the present collegium system for selection of judges to higher judiciary does have some drawbacks, it isinarguable that the Collegium system needs to be reformed. In thelarger public interest, the Supreme Court should not dub any and every proposition made by the Govt. as an unwarranted interference. A rigid, confrontationist and ‘holier than thou’ attitude will do no good to the reputation of highest judicial institution of the country. Similarly, the Govt. should also shun its aggressiveposture. Such an attitude on the part of Govt. will provide readymade fodder to the position to vociferously push their campaign to malign the Govt. by spreading the narrative that the Govt. is hell bent to cripple the institutions which are the backbone of our polity. (To Be Continued)