Print Friendly, PDF & Email

Insights into Editorial: Breaking the logjam, handing over the baton

 

Context:

For the first time ever, the Supreme Court Collegium led by the Chief Justice of India (CJI) recommended/selected as many as nine persons at one go to be appointed to the apex court.

With the appointment later of the nine judges by the President of India, barring one vacancy which arose after the Collegium met, all the nine vacancies in the Supreme Court will be filled up.

The purpose of the collegium system is to ensure that the opinion of the Chief Justice of India (CJI) is not his individual opinion, but the one formed collectively by a body of judges of the highest integrity in the judiciary.

The highest court in the country having its near full strength will ease the pressure on it considerably.

 

Collegium System in Judiciary: Appointment of Judges:

  1. The Collegium System is a system under which appointments/elevation of judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex Court are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.’
  2. There is no mention of the Collegium either in the original Constitution of India or in successive amendments.
  3. The recommendations of the Collegium are binding on the Central Government, if the Collegium sends the names of the judges/lawyers to the government for the second time.
  4. Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval.
  5. If the Collegium resends the same name again then the government has to give its assent to the names. But time limit is not fixed to reply. This is the reason that appointment of judges takes a long time.

 

Evolution of the Collegium System in Judiciary:

First Judges Case (1981): It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”

The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

Second Judges Case (1993): Supreme Court introduced the Collegium system, holding that “consultation” really meant “concurrence”.

It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.

Third Judges Case (1998): Supreme Court on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

 

Constitutional Provisions regarding appointments of Judges:

  1. Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
  2. Article 142 (1) contains the concept of ‘complete justice’ in any cause or matter which the Supreme Court is enjoined to deliver upon.
    1. The Supreme Court has gone into this fundamental normative matrix in which the whole exercise of selection of judges is performed.
  3. According to Article 217, the Judge of a High Court shall be appointed by the President in consultation with the CJI and the State Governor, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

 

Present appointment criteria:

  1. The Bench observed: “There can be no denial that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial office and making judicial appointments”.
  2. Thus, the essence of the norms to be followed in judicial appointments is a judicious blend of merit, seniority, interests of the marginalised and deprived sections of society, women, religions, regions and communities.
  3. It is also a matter of public knowledge that many of those selected have zealously upheld citizens’ freedoms and public interest.
  4. The contributions of a few of them in waking up governments from their slumber in the wake of the COVID-19 pandemic is well documented.
  5. A high level of social consciousness possessed by a Judge enhances the quality of justice.
  6. The present CJI can be credited with recognising this crucial factor in the selection of judges.

 

Much-awaited move:

  1. India is a country of bewildering diversity. In this cacophonous democracy, language, region, religion, community, caste, are all realities which the state cannot ignore while identifying people to man its various organs.
  2. Every CJI during his tenure has taken up the filling up of vacancies as a matter of highest priority, but many could not succeed.
  3. It is indeed a happy augury that the present CJI, Justice N.V. Ramana, could, along with his colleagues in the Collegium, select the judges within a short period of his assumption of office.
  4. It is almost a truism that the selection of judges for appointment to the higher courts, particularly the top court is a complex exercise.
  5. The citizens of the country look up to the Supreme Court for complete justice. So, while selecting a judge to adorn the Bench, the fundamental consideration should be his/her ability to do complete justice.

 

Reforms in Judiciary: Need for transparency:

  1. The National Judicial Appointments Commission (NJAC) could guarantee the independence of the system from inappropriate politicization, strengthen the quality of appointments and rebuild public confidence in the system.
  2. The decision was struck down by the SC in 2015 on the ground that it posed a threat to the independence of the judiciary.
  3. The other area of concern is the composition of the higher judiciary. While data regarding caste is not available, women are fairly underrepresented in the higher judiciary.
  4. India is perhaps the only country where the judges select judges to the higher judiciary.
  5. It is, therefore, necessary to make the norms of selection transparent. The Supreme Court has emphasised the need for maintaining transparency and an openness with regard to the norms of selection.
  6. In 2019, a five judge Bench of the Supreme Court, of which the present CJI was also a member, laid emphasis on this point.
  7. The collegium members often face the issue of mutual consent regarding appointment of judges.
  8. The shadow of mistrust between the members of the collegium exposes the fault lines within the judiciary.

 

Conclusion:

Amongst the constitutional institutions designed to protect democracy, the pride of place is enjoyed by the Indian judiciary.

The nation, citizens and the judiciary must guard against the dilution of its independence.

There is no doubt that there are meritorious people outside this group too. But in a population of 1.3 billion, to select just nine suitable persons to man the highest judiciary is not without difficulty.

Considering the merit of the selected persons, one can undoubtedly say that the Collegium has done a good job.

With seven names (district judges) cleared by the Collegium for the Telangana High Court in one go, we can safely trust Team Ramana to speedily fill up all judicial vacancies. The Collegium has started doing its job.

Now, it is time for the Government to match the pace and take the process of appointments to its logical conclusion at the earliest.