Who will judge the judges?

The universally-accepted Black’s Law Dictionary describes and defines “collegium” (noun), originating from Latin law, as “an association of at least three people having the right to assemble and enact rules concerning membership, organisation, and the rights and duties of members”. It further defines “collegia” (plural of collegium) as “formed for professional, cultural, charitable, and religious purposes”. “Collegium” has two more terminologies — “collegium illicitum”, which means “a collegium that either is not sanctioned by law or assembles for some purpose other than that expressed in its charter”; and “collegium licitum”, which is “an assemblage of people empowered to act as a juristic person in the pursuit of some useful purpose or business”. Several situations emerge from these legal meanings and definitions. First, “collegium” must be “an association of at least three people having the right to assemble and enact rules”. Understandably, it is clear that “right” can’t be a “right” without legal sanctity. No “right” is a “right” without being “sanctioned by law”.

Second, a “collegium... of people” has to be “empowered to act as a juristic person”. The word “empowered” again means there has to be some law to be “to act”. And finally, for a “collegium” to be “licitum” (the word licitum comes from “licit” which means it’s not forbidden by law; permitted; legal) and not “illicitum”, it has to ensure once again it “is sanctioned by law”, and it’s “not forbidden by law”, that it is “permitted”, or is “legal”. Else, it will fail to pass the scrutiny of law for all its acts of commission and omission. This brings us to the present Indian “collegium” scenario. Does the term/word exist in the Constitution or does it have the sanctity of law? Has it been legally authorised or permitted by the Constitution in connection with Article 124 or any other section or sub-section on the subject of appointment of judges to the higher judiciary? With due respect and deep regret, I was unable to find the word collegium in the Constitution of India.

The next logical question is: if the word “collegium”, that has become so serious a subject matter now, and which doesn’t find any mention in the Constitution, then how and when did it come into existence and start operating? What is the genesis of its “legal” induction and origin, if any? And what, and whose, purpose does it serve if it doesn’t have legal sanctity of the supreme law of the land? To understand this better, let us examine Article 124 of the Constitution, the prime source for the establishment and constitution of Supreme Court judges. The word “collegium” is just not there; as it has categorically been stated vide Article 124(2): “Every judge of the Supreme Court shall be appointed by the President... after consultation with such of the judges of the Supreme Court and of the high courts in the states...” The word “consultation” is crucial, but the word “collegium” is absent. Now, what if the President refuses “consultation”, or rejects the panel of suggested names by the collegium.

The head of state could ask: “How can the collegium be a part of so serious an exercise pertaining to the affairs of the state when it does not have the legal or constitutional sanction by virtue of its non-existence?” Can the collegium then be part of the system for selection, proposal and appointment of judges in the Supreme Court? Can the President be charged with “mala fide”? Indeed, that may be construed to be in the domain of fancy, though not necessarily in the realm of fiction. Nevertheless, two interconnected and inter-dependent factors exist. First, in matters related to the judiciary, the view of the Chief Justice of India deserves a greater weight, and if the President is found to have made a grave error of judgment by overriding the Chief Justice’s recommendation on extraneous considerations, the order of the President can be challenged in court on the ground of mala fide (Union of India vs Himatlal Seth). Similarly, even the Chief Justice’s recommendations could be open to challenge if he/she goes by extraneous considerations (Shamser Singh vs State of Punjab).

Today, however, the very concept of “separation of powers” enshrined in our Constitution appears to have got blurred to a considerable extent as Parliament’s power to make laws is not only being challenged in the courts but it appears court rulings too have curbed, or are curbing, the executive’s constitutional mandatory powers. One wonders how the situation has come to such a pass! The Constitution, which has been “given to ourselves... by the people of India”, created the three wings: legislature, executive and judiciary; each with specified duties, on which neither of the other branches can encroach. It is a constitutional doctrine of checks and balances designed to protect the people against tyranny, thereby establishing the rule of law. Compare this with the (unwritten) British Constitution, where Parliament is supreme and “can do everything that is not naturally impossible”; and yet the courts cannot nullify an Act of Parliament on any grounds whatsoever. In the words of Sir Erskine May: “The Constitution has assigned no limits to the authority of Parliament over all matters and persons within its jurisdiction. A law may be unjust and contrary to sound principles of government; but Parliament is not controlled in its discretion, and when it errs, its errors can only be corrected by itself”. Hence, the English judges have denied themselves any power “to sit as a court of appeal against Parliament”.

Although the British system may have few takers and quite a few critics, separation of powers in Britain still appears to be safe. It is often said in India that politicians (meaning MPs) are the root of all evil. Hence the need and rise of the judiciary to control their misdeeds. The point is well taken. But how does one deal with erring judges? Who will judge the judges? Can it be said that only the executive and legislature contain all worms? Will it be fair? Can this be the alibi for first dismissing, and then substituting with the findings of “its own inquiry”, the professional job of the Intelligence Bureau (that comes under the domain of the executive) by the judiciary? Is the judiciary setting an extraordinary legal precedent? Does it really amount to a solid constitutional, legal and judicial activity, thereby trying to preserve the very concept of the separation of powers enshrined in the Constitution? One has to wait for the final answer as it appears the full script is yet to be written.