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3) The judicial appointment to the higher courts remains riddled with arbitrariness, opacity, and an ­absence of accountability. Analyze. (250 words)

Topic– Indian polity : issues

3) The judicial appointment to the higher courts remains riddled with arbitrariness, opacity, and an ­absence of accountability. Analyze. (250 words)

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Why this question

The article highlights some of the controversies in the appointment of judges which brings the focus back on appointment process of judges. It makes sense to revise the issues involved and think of a way forward to prevent this issue from recurring.

Key demand of the question

The question expects us to first explain the appointment process, thereafter highlight the issues with the appointment process and give suggestions regarding what needs to be done.

Directive word

Analyze – When asked to analyze, you  have to examine methodically the structure or nature of the topic by separating it into component parts and present them as a whole in a summary.

Structure of the answer

Introduction – Explain the recent controversies pertaining to the collegium which has brought the focus on this issue.

Body

  • Explain about the appointment process in brief and mention the 3 judges case
    • he right to select judges to the Supreme Court was taken upon itself by the apex court in 1993 and revalidated in a 1998 judgment (Third Judges case).
    • The current government tried to change that with the passage of a law on the National Judicial Appointments Commission (NJAC), but the law was shot down — again by the Supreme Court.
    • NJAC was struck down by the SC because it would have compromised the independence of the CJI and given a role to the government in the appointment of judges.
  • Discuss the controversies often associated with the collegium system and the need for reforms
    • Credibility of the SC: Controversial collegium system of judicial appointments undermines the independence of judges and raises  doubts about the credibility of the highest court. The judiciary off late has been caught in many such situations of credibility crisis off late.
    • Politicization of appointment: Government is not only the biggest litigator but also the greatest threat to the abuse of power. Judicial review as a concept is supposed to control the government and keep it in check.
  • Discuss what needs to be done – memorandum of procedure of appointment of judges

 

Conclusion – Give your view and discuss way forward.