Day 11 – Q.1 What are the recent issues regarding the appointment of senior judges in the judiciary? What are your views on the current mechanism of judicial appointments? Discuss.

What are the recent issues regarding the appointment of senior judges in the judiciary? What are your views on the current mechanism of judicial appointments? Discuss. 

न्यायपालिका में वरिष्ठ न्यायाधीशों की नियुक्ति के संबंध में हाल के मुद्दे क्या हैं? न्यायिक नियुक्तियों के मौजूदा तंत्र पर आपके क्या विचार हैं? चर्चा करें।

Approach

Candidates can start the answer with highlighting recent exchange of words between executive and judiciary and then write about issues and share the views on existing system.

Introduction

Latest statement from executive calling the collegium system of judicial appointments “opaque” and “not accountable” has revived the debate on judicial appointments. Remarks coming from both sides, has lit up the headlines in the last few days.

Body

Issues regarding appointment at higher judiciary:

• The Centre reportedly sent back 20 files to the collegium for reconsideration, expressing strong reservations about those recommendations.
• According to sources, 11 of the 20 cases were fresh cases, while the other nine were reiterations made by the top court collegium.

Concerns related to collegium System for the Appointment of Judges:

• Incentive for dissent lost: The collegium system has created a hierarchy amongst judges, with its members wielding much greater influence than other judges.
• Ignored constitution: Constitution certainly favours what may be called a “wider deliberative and consultative process” in the appointment of judges. There is great merit in this provision.
• Monopolized process: Wisdom cannot be the monopoly of a few chosen ones in the apex court. This omission is a violation of an express provision of the Constitution.
• No reforms were made after the fourth judges’ case: After striking down the NJAC, the court did nothing to amend the NJAC Act or add safeguards to it that would have made it constitutionally valid. Instead, the court reverted to the old Collegium-based appointments mechanism.
• Non-transparency and opaque: (No official procedure for selection + lack of a written manual for functioning + selective publication of records of meetings+ no eligibility criteria of judges) = bring opacity in collegium’s functioning.
• Ignores judicial guidelines: Inconsistent with the view of the SC in the Second Judge’s case, 1993, where it laid that, seniority amongst Judges in their HC and on all India, basis is significant and should be given due consideration while making appointments of Judges to the SC.
• Promotes nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles. Thus, it encourages mediocrity in the judiciary by excluding talented ones.
• No seat in the collegium for any non-judge: neither from the executive, the Bar or anywhere else who could question the collegium.
• Delaying: However, it becomes a concern when government’s objections suggest an indirect motive to delay the appointment of particular nominees.

Way forward

• The NJAC needs to 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 meetings should be in the public domain.
• Apart from reforming the collegium system, the quality of judges can also be improved through the implementation of All India Judicial Services (AIJS).
• We do have highly eminent judges in our high courts and their opinion in the appointment of Supreme Court judges must count.
• Thus, India needs to restore the credibility of the higher judiciary by making the process of appointing judges transparent and democratic.