SUPREME COURT'S CONCERN OVER JUDICIAL APPOINTMENTS

Recently, the Supreme Court has expressed concerns about the loss of fresh legal talent in the judiciary due to government delays in deciding on judicial appointments.

Prospective candidates shortlisted for judgeships in High Courts are giving up on their aspirations as months pass without government decisions.
The government’s practice of segregating certain names from lists provided by the Collegiums (judicial selection bodies) has been criticized, with allegations of preferring one name over another without clear reasons.
The Supreme Court highlighted the delay in processing judicial appointments, with 70 names recommended for judgeships by High Court Collegiums pending for over 10 months.
The government has not taken action on 26 transfers recommended by the Supreme Court Collegium, and nine fresh recommendations for High Court appointments remain unacted upon.
The fate of seven other names reiterated by the Collegium for High Court appointments is uncertain, despite the Memorandum of Procedure requiring prompt action by the government.

About Collegium System and its evolution

The Collegium System is a method for the appointment and transfer of judges in India’s higher judiciary, particularly in the Supreme Court and High Courts.
It is not based on an Act of Parliament or a specific provision in the Constitution but has evolved over time through judgments of the Supreme Court.

Evolution of the Collegium System

First Judges Case (1981)

It established that the “primacy” of the Chief Justice of India (CJI)’s recommendation on judicial appointments and transfers can be refused only for “cogent reasons.”
This decision gave the Executive branch primacy over the Judiciary in judicial appointments for the next 12 years.

Second Judges Case (1993)

The Supreme Court introduced the Collegium system, asserting that “consultation” really meant “concurrence.”
It clarified that it was not the CJI’s individual opinion but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.

Third Judges Case (1998)

In response to a Presidential reference (Article 143), the Supreme Court expanded the Collegium to a five-member body, consisting of the CJI and four of his senior-most colleagues.

Leadership of the Collegium System

The Supreme Court collegium is led by the CJI (Chief Justice of India) and includes four other senior-most judges of the court.
A High Court collegium is headed by the incumbent Chief Justice of the respective High Court and includes two other senior-most judges from that court.
Judges of the higher judiciary are appointed solely through the Collegium System, and the government’s role comes into play only after the Collegium has made its decisions.

Procedures for Judicial appointments

For the appointment of the CJI, the outgoing CJI recommends his successor, which is typically based on seniority.
For other judges of the Supreme Court, the proposal is initiated by the CJI, who consults with the rest of the Collegium members and the senior-most judge of the court from the High Court relevant to the recommended person.
Recommendations are sent to the Law Minister, who forwards them to the Prime Minister for advice to the President.
The Chief Justice of High Courts is appointed based on the policy of having Chief Justices from outside the respective states. The Collegium decides on the elevation.
High Court judges’ recommendations involve the outgoing Chief Justice of the High Court, in consultation with two senior-most colleagues, and follow a similar process as Supreme Court appointments.

Issues related to the Collegium System

Exclusion of Executive: The system excludes the executive branch from the judicial appointment process, leading to a lack of transparency and accountability.
Favoritism and Nepotism: The lack of specific criteria for testing candidates can result in favoritism and nepotism in appointments.
Checks and Balances: The system grants significant power to the Judiciary, potentially violating the principle of checks and balances.
Closed-Door Mechanism: The process is seen as a closed-door affair with no public knowledge of Collegium meetings or official minutes.
Unequal Representation: Women are underrepresented in the higher judiciary, raising concerns about diversity.

Attempts at Reform

An attempt was made to replace the Collegium System with the ‘National Judicial Appointments Commission’ (NJAC) through the Ninety-ninth Amendment Act, 2014, but it was struck down by the Supreme Court in 2015.

Way Forward

There is a need to establish a permanent, independent body to institutionalize the judicial appointment process with safeguards to preserve the judiciary’s independence.
This body should ensure independence, diversity, professional competence, and integrity in judicial appointments while allowing for judicial primacy without exclusivity.

AMIGOS IAS