GS-2: Effect of policies and politics of developed and developing countries on India’s interests
Judicial Selection Needs More Than a Tweak
Context: Recently, new judges have been appointed to the Supreme Court and long overdue vacancies have been filled up.
SC Collegium has also made proposals to alter the existing composition of various High Courts. When these recommendations are notified new Chief Justices will be appointed to as many as eight different courts, five existing Chief Justices will swap positions with others.
Concerns
Collegium system finds no mention in the actual text of the Constitution.
Long-standing criticism about the collegium’s operation remain unaddressed i.e its opacity and a lack of independent scrutiny of its decisions.
There is lack of transparency as to why five Chief Justices are now being transferred to different courts.
For nearly two years, despite vacancies on the Bench, the collegium made no recommendations for appointments to the Supreme Court.
Our constitutional scheme envisages no power of administrative superintendence in the Supreme Court over the High Courts. But when transfers are made routine, when the process of appointing Chief Justices to High Courts is shrouded in secrecy, a de facto system of oversighton High Courts is put in place.
The procedure to be followed by the collegium system is contained in a “Memorandum of Procedure” (MoP). However, there is no actual guidance on how judges are to be selected.
Supreme Court struck down National Judicial Appointments Commission (NJAC), created by 99th Constitutional Amendment Act. This was done on the grounds that judicial primacy in making appointments and transfers was an essential feature of the Constitution.
NJAC would have been responsible for the recruitment, appointment and transfer of Judges of Higher Judiciary.
JNAC was to be comprised of members from the judiciary, the executive, and the lay-public.
But when the Court struck down the NJAC in 2015, it also promised to reform the existing system. Six years down the line those promises have been all but forgotten.
A new MoP, for instance, has not moved forward.
The considerations that must go into the procedure for selecting judges is left unexplained.
The words “merit” and “diversity” are mentioned without any corresponding debates on what they mean.
Conclusion
At some point India must take seriously the task of reforming the existing Collegium scheme, because the status quo is ultimately corrosive of the very institutions that it seeks to protect.
