Insights into Editorial: Judiciary Vs Executive – Judicial Appointments
The justice system is caught in a tussle between the committee of Supreme Court justices and the government over who has the final say on appointing judges. India’s 24 high courts should have 1091 judges. However, as many as 470 positions are vacant. Many are not happy with the present collegium system. The two decade old system of a collegium is an Indian innovation created in the name of judicial independence. However, according to some critics, it has produced an opaque legal justice system.
Quick look at collegium system and its history:
The Constitution does not envisage a collegium of judges to select judges. It was virtually proposed by the lawyer community and the public who were distinctly uncomfortable with the intrusions into the independence of the judiciary in the 1970s and 1980s. When the Supreme Court devised collegium system, it was widely welcomed.
However, public and lawyer community were unhappy with this system too. It was proved, in some cases, that even judges also can be men of straw. The lawyers and the public realised that like any normal human being, several of the members of the collegium did not rise above their religion, caste, gender, language, family, friends and other affinities.
Arguments against the collegium system:
- It is seen as a closed-door affair without a formal and transparent system. Judges, hopeful of going higher, have to please the members of the collegium.
- This system overlooks several talented junior judges and advocates.
- Sometimes, collegium gets stymied, when old rivalries between its members see each other’s favourites getting vetoed.
- Sometimes collegium meetings become examples of bargaining within the collective, and consensus emerging from a division of the spoils.
What does the Constitution actually prescribe?
Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.
Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.
In a bid to reform the judicial system, Parliament of India amended the Constitution and brought about the 99th Amendment to provide for the NJAC after the new government came to power. Subsequent ratification of 20 States was also obtained and it seemed that the collegium was history. However, soon petitions were filed challenging the constitutional amendment. The Supreme Court also struck down the 99th Amendment.
Why was it struck down?
- The composition of the NJAC, especially the inclusion in it of the Union Law Minister and two eminent persons was not widely appreciated. According to the court, the inclusion of the Law Minister in the body impinged on the doctrine of separation of powers.
- The NJAC act gave any two members a veto over all decisions, raising the question whether the executive representatives could overrule the judicial members.
- The court also felt that this new institutional mechanism to appoint judges impinged on the independence of the judiciary, a basic feature of the Constitution.
- The clauses provided in the amendment were also inadequate to preserve the primacy of the judiciary.
- And even the Attorney General, representing the government of India, could not convince the court that the amendment, along with the NJAC Act, was aimed at restoring the system of checks and balances which, according to the government, was lost after the Supreme Court created the collegium scheme of appointments.
Following its judgment, the court, admitting that the existing collegium system had serious flaws, called for suggestions to improve it. Responses came in thick and fast. The court permitted the government to formulate MoP. While permitting the government to formulate a revised MoP, the court was careful to mention the points that needed to be addressed, namely eligibility criteria, measures for transparency, establishment of a Secretariat, and a complaints mechanism. It also specified that this MoP was for the faithful implementation of its decisions in the earlier cases. However, the Court raised concerns over some issues in the draft Memorandum of Procedure (MoP) submitted by the government. The Supreme Court had asked the government to re-consider these clauses.
Recently, the Central government accepted some recommendations of the Supreme Court collegium on draft memorandum of procedures for appointment of judges.
- Lifting the proposed cap on the number of jurists and lawyers for appointment as judges in the Supreme Court. The draft sent to the Chief Justice of India in March had recommended that up to three judges from among jurists and lawyers could be appointed.
- Seniority is now being considered to be the main condition. The government had earlier proposed merit-cum-seniority as the criterion for elevation of judges.
What has not been accepted?
The government has not changed its stand on the proposed clause under which it will have powers to reject any candidate recommended by the collegium on grounds of public interest and national security. The collegium had earlier rejected the proposal. However, the revised draft proposes that the government will communicate to the collegium the reasons for rejecting any name recommended by it.
Which are the other areas that need immediate attention?
- Vacancies in the Supreme Court and in the High Courts need to be filled up. Most High Courts are functioning with half or one third the sanctioned strength.
- Persons of doubtful integrity who might have been appointed by the mistake of the collegium have to be weeded out. A method has to be found without the process of impeachment, and voluntary retirement could be an option.
- The infrastructure in the courts needs improvement — there will not be enough court halls, chambers, or staff, if all the vacancies are filled.
- There needs to be appointment of ad hoc or additional judges to clear pending cases — the reluctance of the collegium to appoint retiring judges as ad hoc judges is baffling.
How the present collegium system can be improved?
- Accepting applications for appointments as High Court judges should be followed. This is followed in the U.K. and can be adopted in India too.
- There must be full and complete disclosure of relationships and affiliations of applicants to sitting and retired judges.
- Minimum eligibility criteria for consideration need to be laid down, including appearances in important cases.
- Parliament should also enact changes to provide a uniform retirement age for judges of the Supreme Court and the High Courts, so that the present practice of some of the judges seeking to be in the good books of the existing or prospective members of collegiums in the Supreme Court is avoided. This will also obviate the argument of expectation based on seniority for appointment as judges of the Supreme Court.
- The retirement age may be raised uniformly to 70 with a condition that no judge retiring at 70 shall be appointed as a member of any Tribunal.
- The continuation as a judge after the age of 65 should be subject to being found ‘not unfit’ by the Permanent Commissions.
- A minimum tenure of two years should be provided to the Chief Justice of India and the Chief Justice of High Courts.
- No judge who is more than 68 years should be made a Chief Justice.
- Court management should not be vested with Judicial Officers but assigned to trained managers.
- All the three organs of the state should also introspect as to why there has been no or inadequate representation in the higher judiciary from amongst women.
The opacity in the appointment of judges has allowed for covert manipulation. It has also meant that often the best legal minds are left out of the judicial system. A transparent, fair, and open system of appointment is central to ensuring that people have faith in the legal system, which is essential for functional democracy, doing business, and ensuring development.