Justice Inside Judiciary

• 14 Oct 2022

This editorial is based on “Debate over the collegium system: How are SC and HC judges appointed?” which was published in The Indian Express on 08/10/2022. It talks about the Collegium System for Judicial Appointment in India and related issues.

For Prelims: Collegium System, 99^th Constitution (Amendment) Act, Chief Justice of India (CJI), SP Gupta Vs Union of India 1981, Second Judges Case.

For Mains: Constitutional Provision for Appointment of Judges, Evolution of Collegium System, Issues Related to the Collegium System, Towards Representative Judiciary.

The Collegium system is the way by which judges of the Supreme Court and High Courts are appointed and transferred. The collegium system is not rooted in the Constitution, or a specific law promulgated by Parliament, it has evolved through judgments of the Supreme Court.

Parliament of India came with the National Judicial Appointment Commission (NJAC) and 99^th Constitution (Amendment) Act for reforms in judicial appointment, but the Supreme Court held it unconstitutional and void by striking down the NJAC and 99^th Constitution (Amendment) Act.

Since then, the Collegium system of appointment and transfer of judges of the higher judiciary has been debated for long, and has been blamed for tussles between the judiciary and executive, as well as the slow pace of judicial appointments.

What is the Collegium System?

• The Supreme Court Collegium is a five-member body, which is headed by the incumbent Chief Justice of India (CJI) and comprises the four other senior most judges of the court at that time.
  • A High Court collegium is led by the incumbent Chief Justice and two other senior most judges of that court.
• The government can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound to appoint them as judges.

What Does the Constitution Say on the Appointment of Judges?

• Articles 124(2) and 217 of the Constitution deal with the appointment of judges to the Supreme Court and High Courts.
  • The appointments are made by the President, who is required to hold consultations with “such of the judges of the Supreme Court and of the High Courts” as he may think is needed.
• But the Constitution does not lay down any process for making these appointments.

How did the Collegium System Evolve?

• First Judges Case (1981): In ‘SP Gupta Vs Union of India’, 1981, the Supreme Court by a majority judgement held that the concept of primacy of the Chief Justice of India was not really rooted in the Constitution.
  • The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 did not mean “concurrence”.
    • It means although the President will consult these functionaries for appointment, his decision was not bound to be in concurrence with all of them.
• Second Judges Case (1993): In ‘The Supreme Court Advocates-on-Record Association Vs Union of India’, 1993, a 9-judge Constitution Bench overturned the decision in ‘SP Gupta’.
  • They devised a specific procedure called the ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
  • Also, the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
• Third Judges Case (1998): In 1998, then President KR Narayanan issued a Presidential Reference to the Supreme Court under Article 143 of the Constitution (advisory jurisdiction) over the meaning of the term “consultation”.
  • The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.
  • The Supreme Court laid down that the recommendation should be made by the CJI and his four senior most colleagues.

What are the Issues Related to the Collegium System?

• Exclusion of Executive: The complete exclusion of the executive from the judicial appointment process created a system where a few judges appoint the rest in complete secrecy.
  • Also, they are not accountable to any administrative body that may lead to the wrong choice of the candidate while overlooking the right candidate.
• Chances of Favouritism and Nepotism: The collegium system does not provide any specific criteria for testing the candidate for the post of CJI because of which it leads to wide scope for nepotism and favouritism.
  • It gives rise to non-transparency of the judicial system, which is very harmful for the regulation of law and order in the country.
• Against the Principle of Checks and Balances: The principle of check and balance is violated in this system. In India, three organs work partially independently but they keep check and balance and control on the excessive powers of any organ.
  • However, the collegium system gives Judiciary immense power, which leaves little room for checks and poses the risk of misuse.
• Close-Door Mechanism: Critics have pointed out that this system does not involve any official secretariat. It is seen as a closed-door affair with no public knowledge of how and when a collegium meets, and how it takes its decisions.
  • Also, there are no official minutes of collegium proceedings.
• Unequal Representation: The other area of concern is the composition of the higher judiciary, women are fairly underrepresented in the higher judiciary.

What Should be the Way Forward?

• Balance Between Independence and Accountability: The real issue is not who (judiciary or executive) appoints the judges, but the manner in which they are appointed.
  • For that, whatever may be the composition of the Judicial Appointment Commission (JAC), it is important to strike a balance between judicial independence and judicial accountability.
    • The Executive should have a say in appointments but the composition of the JAC should be such that it does not result in compromising judicial independence.
• Justice Inside Judiciary: Care must be taken to ensure that the institutional imperative of the Court for dispensing justice is maintained inside the judiciary with equality of opportunity and fixed criteria for selection of judges.
• Reconsidering the Establishment of NJAC: NJAC's Act may be amended to include safeguards that would make it constitutionally valid, as well as reorganised to ensure that majority control remains with the judiciary.
• Gender Diversity and Representative Judiciary: No woman has been appointed as Chief Justice of India so far. There is a need to maintain and promote Gender Diversity in Higher Judiciary with a fixed percentage of its members as women judges that will lead to the evolution of a gender-neutral judicial system of India.
  • Justice B.V. Nagarathna, expected to be India's first woman Chief Justice of India in September 2027, is a welcome step in this direction.

Drishti Mains Question

Discuss how the Indian collegium system evolved and major issues associated with it.

UPSC Civil Services Examination, Previous Year Question (PYQ)

Prelims

Q. Consider the following statements: (2019)

1. The 44^th Amendment to the Constitution of India introduced an Article placing the election of the Prime Minister beyond judicial review.
2. The Supreme Court of India struck down the 99th Amendment to the Constitution of India as being violative of the independence of judiciary.

Which of the statements given above is/are correct?

(a) 1 only
(b) 2 only 
(c) Both 1 and 2
(d) Neither 1 nor 2

Ans: (b)

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Mains

Q. Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to the appointment of judges of higher judiciary in India. (150 words)