Relevance: GS-2: Separation of powers between various organs, Structure, organization and functioning of the Executive and the Judiciary

Key Phrases:  Conflict of Interests, Article 124, Article 217, separation of power, Stability, Opaque and Unaccountable System, Power Asymmetry, Nepotism, Disproportionate Representation

Why in News?

• Justice Akil Kureshi, the senior most High Court Chief Justice of the country, has retired without getting elevated to the Supreme Court despite the existence of vacancies.
• Justice Kureshi's non-elevation is a disconcerting example of the executive influence over judicial appointments, poor reflection on the collegium system and a sad loss to the Supreme Court.
• The objection was based on a negative perception flowing from certain judicial orders passed by Justice Kureshi. Objection was done to avoid a confrontation between the two constitutional bodies as stated by former CJI.

Collegium System:

• Collegium is a system under which the decisions related to appointment and transfer of the judges are taken in India.
• It’s a body consisting of the Chief Justice of India, four senior most judges of the Supreme Court.
• It has no reference in the constitution of India.
• It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.

Evolution of Collegium System:

The genesis of collegium system lies in the famous “three Judges Cases”, which are:

First Judges Case, 1982: SP Gupta Vs Union of India – 1981

• The Supreme Court discussed 2 major points during the proceedings of this case and decided on whether the word “consultation” in the constitutional article 124 mean “concurrence”;
• The Supreme court overruled this and denied saying that Consultation does not mean concurrence. The President was not bound to make a decision based on the consultation of the Supreme Court.
• The court said consultation under Article 124 doesn’t mean concurrence (unanimity). Based on this judgement, the President is not bound by CJI’s advice.
• Another important point in the discussion, in this case, was the part where the Supreme Court decided that a High Court Judge can be transferred to any other high court of a state even against his will.

Second Judges Case,1993: Supreme Court Advocates-on Record Association vs Union of India – 1993

• Another petition was filed in 1993 by the Supreme Court Advocates on Record Association (SCARA).
• In this case, the Supreme court overruled its earlier verdict and changed the meaning of consultation to concurrence. Thus binding the President of India with the consultations of the Chief justice of India.
• Further CJI is required to formulate its advice based on a collegium of judges consisting of CJI and two senior-most SC judges
• This resulted in the birth of the Collegium System.

Third Judges Case, 1998: Article 143 – Opinion of Supreme Court delivered in 1998

• In the year 1998, the presidential reference to the Supreme court was issued questioning the meaning of the word consultation in articles 124, 217, and 222 of the Constitution.
• The court expanded the collegium to a five-member body to include the CJI and the four senior-most judges of the court after the CJI.
• The chief justice won’t be the only one as a part of the consultation process. Consultation would include a collegium of 4 senior-most judges of the Supreme court. Even if 2 of the judges are against the opinion, the CJI will not recommend it to the government.

Importance of Collegium System:

The strengths of Collegium System include:

Maintains separation of power of the State:

• It separates the judiciary from the influence of the executive and legislative.
• This ensures impartial and independent functioning.
• So, the collegium system strengthens the principle of separation of powers (no organ of State should intervene in the functioning of another).

Avoids Conflict of Interest:

• The State is the main litigant in Indian Courts.
• About 46% of total cases pending in India pertains to the government.
• If the power to transfer the judges is given to the executive, then the fear of transfer would impede justice delivery.

Brings in Specialization:

• The executive organ is not a specialist or does not have the knowledge regarding the requirements of the Judge.
• Therefore, it is better if the collegium system appoints Judges.

Stability in times of political vulnerability:

• The government handling the transfers and appointments is prone to nepotism.
• For example, there is ample evidence where the civil servants were transferred for political gains.
• This scenario is avoided by the present collegium system. Further, the collegium system provides stability to the judges.

Concerns:

Main drawbacks of the Collegium System include:

Opaque and Unaccountable System:

• There is no official procedure for selection or any written manual for functioning. This creates an ambiguity in the collegium’s functioning.
• It is a closed door system of appointments having no transparency.
• Without a transparent process of the appointment of judges, the collegium system will not have the credibility and the legitimacy for it to be accepted by all stakeholders within the legal system.

Power Asymmetry:

• It gives enormous power to judges that can be easily misused. The collegium system has made India, the only country where judges appoint judges.

Non-Accountability:

• The selection of judges by collegium is undemocratic. Since judges are not accountable to the people or representative of peoples i.e. executive or legislative.

Disproportionate Representation:

• The collegium system prefers practicing lawyers rather than appointing and promoting “judges of the subordinate judiciary,” which often comprises a diverse pool of candidates.
• As a result of this, the composition of the high court’s becomes, literally, an “old boys’ club” featuring largely male, upper-caste, former practicing lawyers.

Nepotism:

• Collegium has been fraught with serious allegations of different types of alleged conflict of interest among the members of the collegium and the individuals they have selected to become judges of the High Courts and the Supreme Court.
• Thus, it encourages mediocrity in the judiciary by excluding talented ones and breeds nepotism.

Inordinate Delays:

• The delays over the appointment are still persistent.
• The Supreme Court last appointed a judge in September 2019, and it currently has four vacancies, which is expected to be increased further this year.

Way Forward:

• The subjectivity and the inconsistency of the collegium system highlight the need to relook at the process of appointment of judges.
• The NJAC should be amended to make sure that the judiciary retains independence in its decisions and re-introduced in some form or the other.
• A written manual should be released by the Supreme Court which should be followed during appointments and records of all meeting should be in the public domain in order to ensure transparency and rule-based process.
• Apart from reforming the collegium system, the quality of judges can also be improved through the implementation of All India Judicial Services (AIJS).

Sources: Indian Express

Mains Question:

Q. Recently Justice Akil Kureshi was not elevated as a Supreme Court judge even being fully eligible for the post, in this context discuss the process of judicial appointments in India and also discuss the strengths and concerns regarding that appointment process?