Date: 14/10/2022

Relevance: GS-2: Structure, organization and functioning of the Judiciary, issues with the collegium system

Key Phrases: Supreme Court collegium, Evolution of Collegium system in India, Various Judges cases, Issues in collegium system, National Judicial Appointments Commission (NJAC)

Context:

• The collegium of the Supreme Court of India is in the news because of the difficulty that its five judges have in getting together for one meeting.
• The meeting was called for deciding names of candidates for the positions of Supreme Court judges.

Background:

• Since assuming the position of the Chief Justice of India, Justice U.U. Lalit has tried to speed up court proceedings through measures such as constituting five Constitution Benches to hear important matters and filling six vacancies in the apex court.
• He set in motion the procedure contemplated for the collegium of the Supreme Court which is enshrined in the Memorandum of Procedure of 1999 to appoint judges of the SC.
• In a meeting, the collegium decided the name of a candidate and called for another meeting to select other names.
• In the second meeting, one judge could not come in time and the meeting was to be rescheduled but it was objected to by two judges on grounds of procedure of circulation.
• In the meantime, the Law Minister sends a letter asking the CJI’s view on the appointment of his successor and thus the process of appointments comes to an end.
• This raises questions on the working of the collegium system and opaqueness that exists in it.

Evolution of Collegium system in India

• Over the years various judicial verdicts have shaped the structure and functioning of the collegium system.
• The most important in this have been the three judge’s cases which have contributed extensively to the evolution of the collegium.
• 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 till 1993.
• Second Judges Case (1993)
  • The Supreme Court 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.
• Third Judges Case (1998)
  • SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Problems with the Collegium system

• Extra-constitutional or non-constitutional body which has been brought in force by judgments of the Supreme Court.
• The Court itself retains the ultimate power of appointing judges which gives discretion to the judges who are part of collegium.
• No seat in the collegium for any non-judge — neither from the executive, the Bar or anywhere else who could question the collegium.
• Opaqueness leads to a lack of transparency as meetings are held with a closed door.
• There is a Scope for nepotism as the CJI and the collegium enjoy discretion.
• Overlooks talent as several talented junior judges and advocates who could contribute to the judiciary in a highly learned manner.

The National Judicial Appointments Commission (NJAC)

• In 2014, Parliament by unanimity backed by State legislatures enacted the National Judicial Appointments Commission (NJAC).
• It comprised three judges, the Law Minister and two eminent persons to handle the task of appointing judges.
• The Supreme Court struck down the NJAC through a 4:1 majority verdict citing the independence of the Judiciary.
• The court could have tweaked the composition by reducing the number of eminent persons and making judges in majority
  • It would have secured judicial primacy provided for some executive involvement as well as had one person representing a larger public constituency.
• There can be accountability and perceived performance only when there should be a mechanism in place which can question collegium judges.

Issues with judicial appointments

• Over the years successive collegiums not putting forth names disliked by the Government makes it a biased system.
• Appointments to the top court seem to be the preserve of judges from the High Courts with a handful of appointments from the Bar.
• There have been no appointments from the category of distinguished jurists (under Article 124)

Way forward

• It is time to revisit this question and secure a better, broad-based and transparent method of appointing senior judges to the High Courts and the Supreme Court.
• Some nodding acknowledgement should be given to a specific provision made by the founding fathers in the Constitution
• Filling up vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it.
• However, the need of the hour is to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy.

Source: The Hindu

Mains Question:

Q. There is a need to establish an open and more transparent mechanism in appointing judges to the higher judiciary in place of the present system of collegium in India, critically examine. (250 words).