Collegium System and its war with the Central Government – Kumar & Bhan

Collegium System and its war with the Central Government

“No institution in ‘democracy’ is perfect” -CJI DY Chandrachud

The Collegium system is the most debatable topic from the time of its origin. This system has emerged from the various judicial pronouncements of the Supreme Court.

A huge amount of criticism has been faced by the collegium system from the government and the society because of its negative aspects like obscurity and favouritism. Due to these issues, the debate has arisen again by the Central government.

Union Law Minister Kiren Rijiju has written to the Chief Justice of India, that he is not satisfied with the current system of appointing judges aka Collegium System, and has proposed the reintroduction of the National Judicial Appointment Commission (NJAC) and also suggested that the collegium should have at least one government nominee.

What is the collegium system?

The collegium system is a system which deals with the appointment and transfer of the judges of the different courts of India including the Chief Justice of India. It has not been developed by any Act or any provision of the constitution but it owes its origin to the various judgements.

The Present Collegium system comprises 5 judges including 4 Senior-Most Judges of the Supreme Court of India headed by the Chief Justice of India, similarly, Judges of High Courts are also appointed by a group of three Judges which is lead by the Chief Justice of India and other two senior-most judges of the respective High Courts.

Article 124(2) and Article 217 of the Indian constitution lay down that the Judges of the Supreme Court and High Court shall be appointed by the President of India after consultation with judges of the Supreme Court for the former and with the consultation of the Chief Justice of India, the Governor of the state for the latter.

Therefore, power has been Conferred in the hands of these people for the transfer and appointment of the Judges and the role of the government is only to choose those persons who are named by the collegium.

Origin and Journey of the collegium system:

Over time, the procedure of appointment has faced many changes and has transformed from being an executive function which has to be accomplished by the president to being a judicial function which is being exercised by the Chief Justice of India, and the role of the President has become no more than an approver.

The existence of the collegium system is itself an irony because it replaces a body established by the parliament(NJAC) based on it being unconstitutional while being unconstitutional itself.

Till the year 1973, there was a mutual agreement between the government and the Chief justice of India which led to the formation of the convention where it has been agreed that the chief justice of India will be the senior most judge of the Supreme Court but, in 1973, this convention was violated when A.N.Ray was appointed as the Chief Justice of India after superseding three other senior judges of the Supreme Court to him.

This incident saw its repetition in 1977. In this way, the clash between the executive and judiciary regarding the appointment of judges came into existence. Article 124(2) and 217 of the Indian Constitution states that The President shall appoint the judges after consulting with the judges of the Supreme Court and High Court whichever may be necessary but our Constitution is silent about the word “Consultation”. Such matter was later on decided in the following catena of judgements.

S.P. Gupta v Union of India (1981) (“First Judges’ Case”)
In 1981, the collegium system was surrounded by debates when the then law minister, Shiv Shankar filed a petition regarding the implementation of a policy for posting judges out of their home states.

While dealing with the several petitions, the court also shed some light on the power to appoint High Court and Supreme Court Judges and held that the Chief Justice of India and Chief Justice of the High court can only consult and only the executive can exercise the power of appointment.

Justice Bhagwati held that the word consultation does not mean concurrence. The decision of the Supreme Court Judges is not binding on the President in the matter of Appointment and transfer.

Supreme Court Advocate-on-Record Association vs Union of India (1993) (“Second Judges’ Case”)
The Supreme Court overruled its previous judgement in the S.P. Gupta case and held that the word “consultation” implies “concurrence” which means that the Chief Justice of India has the superiority over the President and his power is regarded as “unique, singular and primal”.

Further Supreme court stated that the decision of the Chief Justice of India is not solely his own but is of the collegium which consists of the CJI and Two other Senior Judges.

Re Presidential Reference (1998) (“Third Judges’ Case”)
In this case, 9 judge bench of the Supreme Court opined that the decision of the Chief justice of India has primacy and the collegium should consist of CJI along with 4 other senior-most Judges of the Supreme court which was earlier two in number.

In 2014 Bhartiya Janta Party (BJP) came to power and passed the National Judicial Appointment Commission Act. The composition of NJAC consisted of the CJI, 2 Senior-most judges of the Supreme Court, The Law Minister of India, and 2 eminent members that were chosen by the selection committee(the CJI, P.M., the leader of the opposition). Power has been given to the NJAC for recommending the names for the appointment of judges of the Supreme court and the Transfer and appointment of the judges of the high court.

The constitutionality of NJAC was challenged in the case of Supreme Court Advocate-on-Record Association vs Union of India (2015) andthe Majority of the Supreme Court declared it unconstitutional and violative of the Basic Structure doctrine of the Indian Constitution and also found it to be against the independence of the judiciary.

Hence in this way, the Present collegium system has evolved in which the President is obliged to consider the opinion of the Chief Justice of India and the opinion must be made after due Consultation with the Judges in the Collegium.

Should collegium be quashed?

The constitutional validity of the Collegium System is no doubt a big question and has been answered mostly negatively.

Late V.R. Krishna Iyer says regarding the nature of collegium:

Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own makes the selection. There is no particular structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails. In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone.”

While reading Article 124(2) we often ignore the fact that the article and its application do not match and render the collegium unconstitutional. The article clearly says that:

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.

Meaning, even if the collegium system is ignorant of the constitutional scheme accommodating a body for the appointment of judges, the membership of this very body must be verified and validated by the President of India.

The criticism of the collegium mainly revolves around the following grounds:

  • Transparency: Due to the absence of any criteria-based assessment and any information available regarding the working of the collegium system, makes it less reliable and credible.
  • Unconstitutional: In the Constitution, the word “collegium” is mentioned nowhere, and has been created by the judiciary for reserving the power to select judges.
  • Undemocratic: There is no role of the public in the selection of judges, and consequently the judges are not accountable to the people.
  • Nepotism: Many judges are appointed based on their relations with senior lawyers in the higher judiciary.

Putting aside all the criticism, the Supreme court still maintains that the collegium system is the most transparent body and it should neither be quashed nor replaced. Former Chief Justice UU Lalit also said that the collegium system will stay here unless the government revives the National Judicial Appointment Commission.


Image Credit: Telegraph India


About the Authors

Aditya Kumar Saraswat and Aman Bhan Pachauri are third year Students of the Faculty of Law, Aligarh Muslim University, Aligarh, India.

Indian Law and the Islamic Customary Practice of Women Wearing Hijab – Rakshit Sharma

The Indian Law and the Islamic Customary Practice of Women Wearing Hijab

What is a Hijab?

hijab1  is a head covering scarf that some Muslim women wear in public. For many such women, the hijab signifies both modesty2 and privacy.

In some cases, the hijab is worn by a woman when she’s with men who aren’t in her own family. For other Muslims, it’s equally important to wear a hijab in the presence of non-Muslims, including women. Still other practicing Muslims choose not to wear a hijab at all.
The word hijab is Persian, from the Arabic ḥajaba, or “veil.” (Rumaney, 2021)

Why do Islamic Women wear Hijab?

Wearing a hijab is deeply rooted in Islam but is not mentioned in the Quran3, instead it is mentioned in the Khimar4. Verse 59 of Surah Al-Ahzab, states, “O Prophet, tell your wives and your daughters and the women of the believers to bring down over themselves of their outer garments. That is more suitable that they will be recognised and not be abused. And ever is Allah forgiving and merciful.” (The Hindu Bureau, 2022)

Westernisation started dominating Muslim countries between the 1960s and the 1970s. The resurgence of hijab began in Egypt in the late-twentieth century as a means to reunite and rededicate to the Islamic faith. The movement was known as Sahwah5 and the female pioneers of the movement adopted the Islamic dress, which was made up of an unfitted, full-sleeved, ankle length gown with a head cover that covers the chest and back. This type of a dress was called as a burqa. (Javaid, 2022)

Despite many criticisms of the practice of hijab being oppressive and detrimental to women’s equality, many Muslim women view the way of dress to be a positive thing. The dress code was seen as a way to avoid harassment and unwanted sexual advances in public and works to desexualize6 women in the public sphere to allow them to enjoy equal rights of completely legal, economic, and political status.

However, controversy erupted over the dress code and people from all backgrounds questioned the donning of hijab and what it stood in terms of women and their rights. People questioned whether in practice the hijab a female choice was truly or if women were being coerced or pressured into wearing it.

Ever since the discussion and discourse on the hijab intensified, some nations have attempted to put a ban on hijab while others have made it compulsory for women to wear hijab.

How many countries have banned the Hijab?

There are currently 14 countries that have banned the burqa, including Tunisia, Austria, Denmark, France, Tajikistan, Bulgaria, Cameroon, Chad, Republic of Congo, Gabon, Netherlands, Morocco, China, Sri-Lanka, Switzerland. (FP Explainers, 2022)

Is Hijab banned in India?

India is a vey diverse country with many religions such as Hinduism, Christianity, Islam, Jainism, Sikhism, etc. According to Article 25 of the Indian Constitution, India is a secular7 country and gives equal importance to all the religions, and lets its citizens freedom to practice, process and propagate any religion.

No, Hijab is not banned in India, but in January 2022 a dispute pertaining to school uniforms was reported in a government school in Karnataka where a Muslim girl was denied entry in the school because she was wearing a Hijab. Over the following weeks, the dispute spread to other colleges and schools across the state, with groups of Hindu students staging counter-protests by demanding to wear saffron scarves. This led to various protests in the schools and colleges and outside the schools and colleges and also a petition8 was filed in the Karnataka High Court.

The Hijab Controversy of Karnataka

This whole Hijab controversy started in MGM college9 in Karnataka. Some college girls were not allowed entry in the classroom as they were wearing hijabs, which was not in their prescribed college uniform. The girls started protesting for their rights which led to various protests across the country. When news reporters asked these Muslim girls about why they were wearing hijabs which were not a part of their school uniform, their answer was that – “Hijab protects their dignity and because they have been wearing it since an early age.”

Another girl said that – “Hijab is their first priority and education is their second priority.

The same question was asked to Hindu girls, and the students said that school is the only place where students from all religions come to study in a uniform way. The students said that if Muslim girls are allowed to wear headscarves/Hijabs then all students should be allowed to wear scarves, because the point of wearing a uniform is that all students should be equal in all aspects, and that if they want to wear hijabs and study then they should go in the colleges which allow them to wear hijabs and not study in this college.

The matter was taken to the High Court of Karnataka.

The Hearing and Verdict of the Case in Karnataka High Court

Petitions were filed in the Karnataka High court on behalf of the aggrieved10 students. On 8th February, the government closed high schools and colleges for three days due to protests and disputes over the wearing of the hijab. On 10th February, the High Court issued an interim11 order restraining all students from wearing any form of religious attire.

When the schools reopened on 14th February, the interim order was implemented in all schools and colleges across Karnataka, with students, and in some cases teachers, being asked to remove hijabs and burqas outside the school gates.

After a hearing of about 23 hours spread over 11 days, the court delivered its verdict on 15th March 2022, upholding the restrictions on hijab. The court ruled that the Hijab is not an essential religious practice in Islam and, hence, it is not protected by the Article 25 of the constitution setting out the fundamental right to practice one’s religion. (Plumber, 2022)

Conclusion

Wearing a Hijab in India is not banned in public areas in India, and it will not be banned in the near future as India is a secular country. The decision taken by the Karnataka High Court was correct according to me because it only restricted girls to not wear hijabs in schools and colleges as schools and colleges are places where a student goes to acquire knowledge and also learn certain moral values such as equality. The way through which equality is taught in Indian schools and colleges is through a uniform dress code which each and every student has to follow if they are studying in that school or college because before getting admission in that school or college the parents and the students have to agree to the terms and conditions of the school or college and if they don’t do that then their children will not be admitted to
that school or college because a school and college runs on its own terms and conditions or with the terms and conditions prescribed by the Government of India.

Another question arised in the minds of people when all kinds of religious attire were banned by the High Court of Karnataka, then Why were Sikh students allowed to wear turban and go to schools and colleges?

The simple answer to this question was that wearing a turban is an essential practice in Sikhism and if the court restrained the Sikh students to wear the turban, then the court would have infringed their fundamental right of practicing their religion.

Also, all schools and colleges which have uniforms have prescribed the Sikh students to wear a turban only of the colour of their uniform and no other colours.

Due to this, another question arose that if Sikh students can be allowed to wear a turban of the school uniform colour, then why can’t Muslim girls be allowed to wear hijabs of the colour of their uniform?

The answer to this was that wearing a hijab is not an essential part of Islam whereas wearing a turban is an essential part of Sikhism. Therefore, Hijabs are not allowed only in schools and colleges, but women are allowed to wear it outside schools and colleges.

I would like to share a conversation of mine with two Muslim women who were wearing hijabs in the Delhi Metro. I was a bit hesitant at first before approaching them to ask them about Hijabs and about their views on the situation that happened in Karnataka because the metro was really crowded and also, I was afraid of what if they reacted in an offensive manner. But I gathered courage, went to them, and introduced myself to them and also asked them whether they felt comfortable in answering these two questions.

They both introduced themselves and agreed to answer the questions, the two women had the Mother Daughter relation. So, the answer to the first question that is, why do Muslim women wear Hijabs? was answered by the first woman, who the mother of the second woman was. She said that she was ordered to wear the hijab at an early age by her parents because of two reasons, the first reason was, because it was their tradition of dressing modestly and the second reason was, so that the girl should feel safe from the evil men12 in the society. When I asked her what she meant by evil, she replied that evil men are those men who look at women as an object and not a human being. So, for being safe from such men in the society they were asked to wear hijabs by their parents and because of these two reasons this tradition is being passed on from one generation to the other.

The second question, about the situation in Karnataka whether they agreed with it or not?

Both the women had a neutral answer for it. They had no problem with the judgement of the High Court of Karnataka. But they said that nowadays girls are not safe even in schools and colleges as a lot of rapes are happening even in schools and colleges. They said that schools and colleges should be places where students should be given education not only from books but also, they should be given moral values so that they do not end up becoming evil men in the future. They ended the conversation by saying an especially important statement that, if by wearing the same uniform students see each other as equal, then the schools should also teach them that there is no difference between men and women and both men and women are equal in all aspects.

If this mentality13 of the society changes then all women can feel safe wherever they go at anytime of the day/night and also wearing any type of clothes. Thus, transforming India into a safe country for both men and women.

References

FP Explainers. (2022, March 15). Hijab ban stays in Karnataka: A look at countries where veils are barred. Retrieved from www.firstpost.com: https://www.firstpost.com/world/hijab-ban-stays-in-karnataka-a-look-at-countries-where-veils-are-barred-10460931.html

Javaid, A. (2022, February 11). History of hijab in Islam: Why Muslim women wear hijab? Retrieved from www.m.jagranjosh.com: https://m.jagranjosh.com/general-knowledge/history-of-hijab-in-islam-1644244440-1

Plumber, M. (2022, March 15). Holy Quran Does Not Mandate Wearing Of Hijab; Islam Does Not Cease To Exist If Hijab Is Not Followed : Karnataka High Court. Retrieved from www.livelaw.in: https://www.livelaw.in/top-stories/holy-quran-does-not-mandate-wearing-of-hijab-islam-does-not-cease-to-exist-if-hijab-is-not-followed-karnataka-high-court-194223

Rumaney, H. S. (2021). Not Without My Hijab: Experiences of Veiled Muslim Women in India. Human Arenas 2021.

The Hindu Bureau. (2022, March 15). Hijab not an essential practice of Islam, rules Karnataka High Court. Retrieved from www.thehindu.com: https://www.thehindu.com/news/national/karnataka/wearing-of-hijab-is-not-an-essential-practice-as-per-islamic-faith-karnataka-high-court/article65226798.ece


Photo credit: The Telegraph | JAGADEESH NV/EPA-EFE/Shutterstock

  1. Hijab – A head covering scarf worn by Muslim women in public places signifying modesty and privacy. []
  2. Modesty – The quality of not being too proud or confident about yourself or your abilities. []
  3. Quran – The holy book of Islam. []
  4. Khimar – A long veil worn by Muslim women as part of hijab. []
  5. Sahwah – Period of powerful social and political change in Saudi Arabia between 1960s and 1980s. []
  6. Desexualize – Deprive of sexual character or the distinctive qualities of a sex. []
  7. Secular – Not connected with religious or spiritual matters. []
  8. Petition – A formal written request, typically one signed by many people, appealing to authority in respect of a particular cause. []
  9. MGM College – Mahatma Gandhi Memorial College Udupi. []
  10. Aggrieved – Feeling resentment at having been unfairly treated. []
  11. Interim – During the same time. []
  12. Evil Men – Here, evil men refer to men who objectify women or men who sexually abuse women. []
  13. Mentality – The characteristic way of thinking of a person or group. []