Judicial Appointments(A knotty issue)
The judiciary and the government have decided to draft a new Memorandum of Procedure (MoP) to guide future appointments.
This will address the concerns regarding lack of eligibility criteria and transparency, establishment of a Secretariat and a complaints mechanism.
The MoP is still not finalised due to lack of consensus on various matters between the government and the judiciary.
In absence of agreement the appointments are still being made by the collegium system.
The Central govt. wants the appointments to be done through National Judicial Appointments Commission(NJAC)
What is National Judicial Appointments Commission
Justice M N Venkatachaliah Commission in 2033 recommended the formation of National Judicial Appointments Commission (NJAC) to replace the collegium system.
The present government tried to give shape to the NJAC by way of the 99thConstitutional Amendment.
Supreme Court, through a five judge constitutional bench, declared the NJAC as unconstitutional.
The bench claimed that NJAC would have taken away the primacy of the judiciary in the process of appointments and transfers.
NJAC would have comprised of the CJI, his two senior-most colleagues, the Law Minister, and two eminent persons, who would be jointly appointed by the Prime Minister, the Leader of the Opposition and the CJI.
However, this has led to an impasse between the government and the judiciary. This has an impact on the deliverance of justice since it is leading to delay in filling vacancies in the judiciary.
The judiciary-government face-off cannot go on indefinitely and they should finalise the MoP at the earliest possible.
Both judiciary and government need to interact in a direct manner to come to a resolution. This will ease the increasing pressure on the judiciary with respect to the number of pending litigations
What is Collegium System?
A system of appointment and transfer of judges which is a result of a series of judgments called “Judges Cases”.
Collegium is a body of senior apex court judges responsible for appointment and transfer of judges of the Supreme Court and High Court.
The collegium was a product of the interpretations of constitutional provisions by the Supreme Court in the three ‘Judges Cases’.
It is not a result of an Act of Parliament or by a provision of the Constitution.
Judges of the higher judiciary are appointed only through the collegium system and the government’s say comes in once the names have been decided by the collegium.
The government can object to the candidature of any of the names recommended and seek clarifications concerning the same. However, if the collegium decides on the same again the government is bound to appoint them as judges.
Members of the Collegium
Supreme Court Collegium
The Supreme Court collegium is headed by the CJI.
Comprises four more senior most judges of the Supreme Court.
High Court collegium
The High Court collegium is led by its Chief Justice of the respective High Court
Comprises four more senior most judges of that High Court.
Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
Constitutional Provisions
Article 124(2) and Article 217 of the Constitution of India provide for appointment of Judges of the Supreme Court and High Courts.
Article 124(2): Appointment of Judges of Supreme Court
Appointment by the President
In consultation with judges of Supreme Court and High Court in the States as he deems fit
Eligible to hold office up to the age of 65 years
Chief Justice of India (CJI) shall be consulted in case of appointment of judges other than the CJI
Article 217: Appointment of Judges of High Court
Appointed by the President
In consultation with the CJI, Governor of the State,
CJI of the high court shall be consulted in case of appointment of judges other than the CJI
Judicial Provisions – Judges Case
First Judges Case: S P Gupta Vs Union of India
The primacy of the CJI in matters of appointment and transfers was questioned.
The term “consultation” used in Articles 124 and 217 did not mean concurrence.
This implied that although the President will consult the concerned persons as mentioned in the Constitution but he was not bound by their advice / recommendation
The judgment made the Executive more powerful in the process of appointment of judges of High Courts.
Second Judges Case: The Supreme Court Advocates-on-Record Association Vs Union of India
Overruled the decision in First Judges Case.
Devised the ‘Collegium System’
Gave primacy to the CJI in matters of appointment and transfers and highlighted that the term consultation would not diminish the primary role of the CJI.
The CJI should make recommendations in consultation with his two senior most colleagues.
Third Judges Case: Presidential Reference by President K R Narayanan
The purpose was to give meaning of the term “consultation” under Article 143.
Supreme Court came out with the present form of Collegium System.
The recommendation should be made by the CJI and his four senior most colleagues, instead of two.
Shortcomings of Collegium System
It is non-transparent system without any official mechanism or secretariat lawfully enacted by the Parliament.
There is no provision regarding the collegium system or such a body in the Constitution.
It lays down no prescribed norms regarding eligibility criteria or even the selection procedure.
No information regarding its meetings, procedures and methods is there in the public domain.
Lawyers also suffer from lack of knowledge whether their names have been considered for elevation as a judge.
It is a system where the members of the judiciary are serving their own ends.
Judicial primacy in making appointments is not a part of the basic structure.
This method gives excess powers to the judiciary and does not give genuine broad minded lay persons to be a part of the process of selection.