Syllabus
- Mains – (Polity and Governance)
Context: The government recently cleared the appointment of two judges to the Supreme Court. The two new apex court judges are Justice Prashant Kumar Mishra and K.V. Viswanathan, who is a direct appointment from the Supreme Court Bar.
About Appointment of Judges:
- Judges of the High Courts and the Supreme Court are appointed by the provisions mentioned in Articles 124 and 217 of the Constitution of India.
- Articles 124 and 217 state that the President shall appoint judges to the Supreme Court and high courts after consultation with the Chief Justice of India and other judges.
- The current strength of the Supreme Court Judge is
- The Union Minister of Law, Justice, and Corporate Affairs would receive the Chief Justice of India’s request and recommendation to fill the vacancy whenever a vacancy arises in the position of a Supreme Court judge.
Collegium System:
Composition:
- The Supreme Court Collegium consists of the CJI and four senior-most judges of the apex court.
- High Court Collegium consists of the Chief Justice of the High Court and two senior-most judges of that particular court.
- 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.
- The Supreme Court collegium is headed by the Chief Justice of India and comprises four other senior-most judges of the court.
- A High Court collegium is led by its Chief Justice and four other senior-most judges of that court.
- Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
- Judges of the higher judiciary are appointed only through the collegium system, and the government has a role only after names have been decided by the collegium.
Evolution of the collegium system:
The collegium system has its genesis in a series of Supreme Court judgments called the ‘Judges Cases’.
FIRST JUDGES CASE:
- In S P Gupta Vs Union of India, 1981, the Supreme Court judgement held that consultation does not mean concurrence and it only implies an exchange of views.
SECOND JUDGES CASE:
- In The Supreme Court Advocates-on-Record Association Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
THIRD JUDGES CASE:
- In the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief Justice of India requires ‘consultation of plurality judges’.
- The sole opinion of the CJI does not constitute the consultation process.
- He should consult a collegium of four senior-most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.
- The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process is not binding on the government.
Issues with the current collegium system:
- The collegium system does not provide any guidelines or criteria for the appointment of the Supreme Court judges and it increases the ambit of favouritism.
- In the collegium system, there are no criteria for testing the candidate or for doing a background check to establish the credibility of the candidate.
- The absence of an administrative body is also a reason for worry because it means that the members of the collegium system are not answerable for the selection of any of the judges.
Attempts to reform the Appointment System:
About National Judicial Appointments Commission (NJAC)
- 99thConstitution Amendment Act: It introduced three key Articles- 124 A, B, and C and amended clause 2 of Article 124.
- Article 124A created the National Judicial Appointments Commission (NJAC), a constitutional body to replace the collegium system.
- Article 124B vested in this NJAC the power to make appointments to both the Supreme Court and the various high courts.
- Article 124C accorded express authority to Parliament to make laws regulating the NJAC’s functioning.
Composition of NJAC
- The Chief Justice of India as the ex officio Chairperson
- Two senior-most Supreme Court Judges as ex officio members
- The Union Minister of Law and Justice as ex officio member
- Two eminent persons from civil society (to be nominated by a committee consisting of the Chief Justice of India, Prime Minster of India and the Leader of Opposition in the Lok Sabha; one of the eminent persons to be nominated from SC/ST/OBC/minorities or women).
Significance:
- The need for the National Judicial Appointment Commission was aroused because many jurists criticised the existing collegium system, stating that India is the only country where judges appoint themselves and have the power of determining their transfers.
Issues with NJAC:
SC’s previous action:
- The concept of NJAC has come under consideration of the Supreme Court three times in 1993, 1998 and 2016.
- All three times, while giving importance to independence of the judiciary, the Supreme Court dismissed the framework of the NJAC.
Issue of political influence:
- It is cited by critics that the judiciary is the only independent institution left in the country.
- It is harmful to allow political influence over it.
- It is also being stated that the collegium system is functioning smoothly.
- There is scope for improvement, but not for any political interference. The central government should in no manner be allowed to control the appointment of the judiciary.
Culture of reciprocity:
- The involvement of the legislature in the appointment of judges might lead to the creation of a culture of ‘reciprocity.’
- Meaning that judges might have the feeling of having to pay back the political executive as a consideration for their appointment to the post of judge
Constitutional impossibility:
- The recent bill was opposed in the Rajya Sabha, calling it a “constitutional impossibility”.
Way Forward:
- There is an urgent need to improve the judge-to-population ratio to reduce the workload of judges.
- Centre had suggested measures like increasing the number of working days of courts, establishment of fast track courts and Indian Courts and Tribunal Services (ICTs) to increase the productivity of the court system.
- Improve judicial infrastructure through the use of e-platforms and setting up of more courts.
- India has launched the e-Courts National portal ecourts.gov.in of the eCourts Project.
Source: The Hindu