GS Paper 2
Syllabus: Structure, Organization and Functioning of the Executive and the Judiciary
Source: The Hindu
Context: Recently, the Union Minister of Law and Justice citicised the collegium system under which appointments of judges to the High Courts (HC) and the Supreme Court (SC) are made, as opaque.
Background:
- The National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the recruitment, appointment and transfer of judges to the HCs and SC.
- It was established by amending the Constitution of India through the 99th Constitutional Amendment Act-2014.
- The NJAC would have replaced the collegium system for the appointment of judges, but in 2015 it was struck down by the SC on the grounds of endangering judicial independence.
About the Collegium system:
- The collegium system is the way by which judges of the SC and HCs are appointed and transferred.
- It is a five-member body, which is headed by the incumbent Chief Justice of India (CJI) and comprises the four other senior most judges of the court at that time.
- A High Court collegium is led by the incumbent Chief Justice and two other senior most judges of that court.
- 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.
- Names recommended for appointment by a High Court collegium reach the government only after approval by the CJI and the SC collegium.
- The role of the government in this entire process is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a HC or the SC.
- The government may also object to and seek clarification on the collegium’s choices, but if the collegium reiterates the same names, the government is bound to appoint them.
- The collegium system is not rooted in the Constitution or a specific law promulgated by Parliament, rather it has evolved through judgments of the SC.
The evolution of the Collegium system – Three Judges Cases:
- P. Gupta & Others v. Union of India, 1981: The opinion of the CJI had no primacy over the opinion of the Chief Justice of the HC, thus, both have equal importance in the consultation process.
- Advocate on Record Association v. UoI, 1993: The court overruled the above case and held that in the matters of appointment and transfer of Judges the view of CJI has the greatest significance.
- In re Presidential Reference case (1998): The recommendation made by the CJI without following the consultation process for appointment of SC and HC Judges is not binding on the government.
Criticism of the Collegium system:
- According to the critics, the system is non-transparent, since it is seen as a closed-door affair with no prescribed norms regarding eligibility criteria, selection procedure.
- The system is opaque and not accountable. Judges do not appoint judges all over the world, but in India, they do.
Way ahead: The Memorandum of Procedure (MoP) – an agreement between the judiciary and the government (came into existence after NJAC was struck down) that outlines the criteria for appointing judges to the SC and HCs, must be followed in letter and spirit.
Insta Links:
The Court and the problem with its collegium
Mains Links:
Q. Critically examine the Supreme Court’s judgment on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.(UPSC 2017)
