Importance for Exams

Only from a mains perspective. Important to understand – MOP, Security Clause, RTI, JSA Bill.

The News

In October 2005, the SC bench in a majority of 4:1 rejected the NJAC Act and 99th Constitutional Amendment and Collegium was brought back in. The grounds stated were the following :
1. Primacy of the judiciary was not ensured which was mandatory for independence of Judiciary
2. Active role of executive was not desirable as the govt. was the litigant more than 60% of the times.
3. Other minor issues on eminent personality, etc.

FM Arun Jaitley criticized the ruling as “democracy becoming tyranny of the unelected”. To which former CJI Justice Lodha replied stating when the will of the people through elected representatives is opposed to the constitution, the judiciary ought to be governed by the latter.
Interestingly, one positive development out of this chaos has been judiciary’s acceptance of the flaws in the collegium system and its willingness to work with the executive to evolve it.

In this regard, the SC asked the Govt. to work on a revised MoP addressing the following issues of the Collegium –
1. Opaque working
2. Lack of objectivity
3. Lack of accountability
4. Missing broad-based consultations.

The revised MoP proposed the following
Nominations – Proposal is to setup a Technical Committee. This committee will accept nominations and hold wider consultations to select the best candidates.
Eligibility – a) The prime criteria will be Seniority along with b) Merit and integrity. In case a senior Chief Justice being overlooked for elevation   reasons for the same be recorded in writing.
Permanent Secretariat : maintaining records of high court judges, scheduling meetings of the SC Collegium, receiving recommendations as well as complaints in matters related to appointments, scrutinize data relating to prospective appointees, and lays down a judicial mechanism for redress of complaints against judges.

Points of contention
Most of the points mentioned above stand sorted except for the Security Clause.
Security Clause : The clause under which Govt will have powers to reject any candidate recommended by the collegium on grounds of public interest and national security. Revised draft proposes that the government will communicate to the collegium the reasons for rejecting any name recommended by it.



*Click here to read the previous developments*

Any doubts?

[op-ed snap] Open court: In judicial appointments and transfers, justice will now be seen to be done

Image source


Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Collegium system, Memorandum of Procedure, National Judicial Appointments Commission

Mains level: Transparency initiative taken by SC & various HC’s and its ramifications on overall Indian Polity i.e judiciary, legislature and executive


Judiciary moves towards more transparency

  1. The Supreme Court has begun to upload the decisions of the collegium in the elevation, confirmation, and transfer of judges, and the reasoning behind them, at the time that its recommendations are forwarded to the government
  2.  This initiates transparency in a contested process when the judiciary and the executive have been at loggerheads over the Memorandum of Procedure
  3. In a 2015 judgment rejecting the proposed National Judicial Appointments Commission, the Supreme Court recommended improving the transparency of the collegium system

Consent of judges necessary in transfers

  1. A 1993 judgment makes it clear that consent for transfer should be taken “unless there exist pressing circumstances making it unavoidable”
  2. In addition, the circumstances must be in “public interest”

Current status: Criticism and justification

  1. The collegium’s recommendations for appointments to the Kerala and Madras High Courts are already on record and detail the process by which candidates were vetted
  2. The criticism has been made that the details were uploaded after the collegium took the decision, and the recommendations were on their way to the government
  3. Justification: If the collegium were to publish details prior to the decision, it would impugn the objective of confidentiality, which its resolution specifies
  4. The transparency delivered by the system is enough to prevent appointments that are clearly ill-advised

Judiciary failed to fill 4,937 vacancies in lower courts: Centre

  1. Event: CJI T.S. Thakur yet again accused the government of delay in filling the 442 judicial vacancies in the HCs
  2. Govt response: Asking reasons for judiciary’s “lapse” in appointing judges to the district and subordinate courts, which need 10 times more judges
  3. The total sanctioned strength of judicial officers in district and subordinate courts is 21,320 as on June 30, 2016
  4. Of these, 16,383 have been filled, leaving 4,937 vacancies
  5. Data show that a trial court takes anything between 94 and 822 days to dispose of criminal matters. A sessions case takes an average of one year and two months

Importance: The SC often blames the govt for delays in appointments. This news indicates that there are delays due to the judiciary also.

SC Collegium refuses to accept govt.’s rejection of 43 names for HC judges

  1. What: The SC Collegium has refused to accept the govt’s rejection of 43 names of the 77 it had hand-picked for judicial appointments in HCs
  2. The SC informed the govt that it had reiterated every one of the 43 names that was sent back by the Centre to the Collegium for re-consideration
  3. Prevalent procedure: If the Collegium reiterates the names sent back to them, the govt is bound to accept them and clear them for appointment as judges
  4. The govt had sent back the names after CJI Thakur told the Centre to send back names in case of any difference of opinion rather than keep the entire process of judicial appointments hanging

Approved strength of judges enough to end backlog: Law panel head

  1. Context: The ongoing Judicial appointments issue in the country
  2. Law Commission of India Chairman and former Supreme Court judge Justice Balbir Singh Chauhan said working judges, and not increasing sanctioned strength of judges, may be a solution to modern-day demands of judicial workload
  3. The workload is caused by the heightened legal awareness among the public about their liberties
  4. Steps should be taken to fill the sanctioned strength rather than increase the number of judges over and above the current sanctioned strength to solve pendency
  5. It’s a completely different view from the highest judiciary’s call for more judges to trim pendency
  6. Background: His view comes at a time when SC has directed the Law Commission to file a report within a year on whether it is permissible to rid the apex court of routine appeals crowding the court, to help it focus on cases of national and public interest
  7. Also at a time when CJI Thakur has called for over 70,000 more judges to be appointed to courts all over the country to clear the backlog

SC to hear plea for independent judicial appointments commission

  1. Petition: Seeks the formation of a public, transparent body, neither controlled by the government nor the judiciary, for the appointment of judges to the Supreme Court and High Courts of the country
  2. It will have a role for public
  3. Why? To secure a selection from a diverse and wider pool of candidates & bring an end to the patronage and influence of the so-called legal luminaries
  4. Petition By: The National Lawyers Campaign for Judicial Transparency and Reforms
  5. Context: The ongoing Judicial appointment conundrum in the country

My fight is for transparency, says Justice Chelameswar

  1. Context: His decision to skip the meetings of the Supreme Court Collegium till the highest judiciary ushers in transparency
  2. Why? Solely for the cause of transparency and was not fighting for any personal gain
  3. Justice Chelameshwar: The judiciary should evolve a procedure for bringing in transparency in appointments after having rejected both the government’s arguments and rescinded a parliamentary law on NJAC
  4. His dissent is as historic as it is revealing of the Collegium’s opacity

Didn’t stall judicial appointments: Govt

  1. NJAC: For almost a year-and-a-half, the entire appointments process went into a deep freeze mode and vacancies piled up as litigation challenging the National Judicial Appointments Commission (NJAC) laws dragged on in the Supreme Court
  2. Memorandum of Procedure: The MoP has never delayed the judicial appointments process as has been proved by statistics
  3. Stats: 52 judicial appointments to various High Courts have already been made till date & 10 additional High Court judges have been confirmed
  4. Also, 4 Supreme Court judges have been appointed and nine High Court Chief Justices have been confirmed

Centre accepts some suggestions of collegium- II

  1. Criteria: While the Govt had earlier proposed merit-cum-seniority as the criterion for elevation of judges, only seniority is now being considered to be the main condition
  2. Unchanged: The clause under which Govt will have powers to reject any candidate recommended by the collegium on grounds of public interest and national security
  3. Revised draft proposes that the government will communicate to the collegium the reasons for rejecting any name recommended by it

Centre accepts some suggestions of collegium- I

  1. News: The Central government has accepted some recommendations of the Supreme Court collegium on draft memorandum of procedures for appointment of judges
  2. However, it reinforced its views regarding certain other key clauses on which the collegium had earlier raised objections
  3. Jurists: Govt accepted To lift the proposed cap on the number of jurists and lawyers for appointment as judges in the Supreme Court
  4. Background: 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.

No panel to address complaints against judges, clarifies govt

  1. News: Govt has said consideration of complaints against sitting judges will continue to be a strictly in-house process within the judiciary
  2. Context: There were speculations that the Centre has proposed a secretariat of retired judges to deal with complaints against sitting judges of the Supreme Court and the High Courts
  3. Background: The government returned a draft of the Memorandum of Procedure (MoP) to the Collegium for its consideration on August 3
  4. It was a part of the consultative process underway to finalise ways to make the collegium system of judicial appointments accountable and transparent

Supreme Court pulls up Centre for sitting on Collegium list

  1. News: In its sharpest-ever attack in open court on the Govt, SC asked whether the Centre intends to bring the entire judiciary to a grinding halt by sitting on recommendations of the Collegium for appointment and transfer of judges to High Courts across the country
  2. Confrontation ahead? Chief Justice of India T.S. Thakur made it clear to the Centre that the court would not shy away from a confrontation with the government if driven to a corner
  3. Judicial intervention: If matters continued in the same vein, the court would be forced to intervene judicially and call for every file of every recommendation forwarded by the Collegium to the government for clearance
  4. Context: SC was hearing a PIL highlighting the enormous backlog of cases in various courts which has acquired uncontrollable proportions
  5. Background: Chief Justice had made an emotional appeal in the presence of Prime Minister Narendra about the rising burden of judges due to vacancies and pendency

Collegium reiterates objections to draft memo

  1. News: The Supreme Court collegium has reiterated its rejection of several crucial clauses in the government’s draft Memorandum of Procedure (MoP) for appointment of judges
  2. Context: The relations between judiciary and government has been sour over a clause in the MoP on appointment of judges
  3. Collegium: Opposed to how the government wants merit to be the overriding concern and not seniority, as is the norm, of judges during appointment and elevation
  4. Proposed that both merit and seniority should be balanced
  5. Collegium is also upset about the government’s authority to reject a judicial candidate citing national security reasons despite their recommendations

Judiciary vs government – background

  1. Ever since the Supreme Court (SC) struck down the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment, the relations between judiciary and government has been sour
  2. As a compromise it was agreed that the government would draft a revised Memorandum of Procedure (MoP), intended for appointment of judges
  3. However, a clause in the revised draft MoP empowering the government to reject the names suggested by the SC Collegium was not acceptable to the judges
  4. The clause on the right to reject a recommendation on grounds of national security gives primacy to the government on appointment of judges
  5. Earlier practice: Government was bound to accept a recommendation by the Collegium (4 senior-most judges of the SC and the CJI) if a recommendation is sent again
  6. The revised MoP further provides that once the Centre has rejected a recommendation it will not be bound to reconsider it even after reiteration by the collegiums

Nearly half of High Court judges posts vacant

  1. News: The number of vacancies of High Court judges has grown to 470 out of the sanctioned strength of 1079, representing 45% vacancy
  2. Reason: Clause in the Memorandum of Procedure (MoP) that gives the government the right to reject names suggested by the Supreme Court Collegium system
  3. Context: Continuing tussle between the government and the judiciary over a clause in the MoP on appointment of judges

Chief Justice of India again calls for augmenting judges’ strength

  1. Context: CJI concerns about the paucity of judges in the country
  2. CJI: Access to justice is the fundamental right of people and Govt couldn’t deny it
  3. Also expressed his worry about Govt’s inaction on improvement of judges population
  4. Earlier: Raised the problem of ‘shortage of judges’ in the presence of PM at a conference in New Delhi
  5. There are 450 vacancies of judges

Background to the MoP for appointments

  1. In December 2015, a Constitution Bench led by Justice J.S. Khehar, after restoring the collegium system, had directed the Centre to frame a new Memorandum of Procedure (MoP)
  2. The Bench had directed the govt to do this in consultation with the CJI
  3. CJI would in turn take into confidence his four seniormost puisne judges of the SC and who are part of the collegium
  4. Legacy: MoP for appointment of judges to the SC & HC have always been prepared by the executive in consultation with the President and the CJI
  5. This is in consonance with the judgments of the Second Judges and Third Judges cases which ushered in and fine-tuned the collegium system

Govt. bound to comply

  1. Context: The Supreme Court has sent back the draft Memorandum of Procedure (MoP) for appointment of judges to the govt
  2. Presently: Govt is bound to comply if the SC collegium chooses to override its disapproval of a person recommended for judicial appointment
  3. If the government returns the candidate’s file to the collegium, and the latter reiterates its recommendation, the government has no choice but to comply

SC sends back draft on judges’ appointment

  1. What? The Supreme Court has sent back the draft Memorandum of Procedure (MoP) for appointment of judges to the Govt
  2. Why? For re-consideration of certain objectionable clauses in it
  3. Clauses: Role of the Attorney-General of India in the appointment of Supreme Court judges and Advocates-General in the appointment process of High Court judges
  4. Also a clause giving the govt the right to reject the collegium’s recommendation

CJI slams government for stalling judicial appointments

  1. Context: Chief Justice of India criticised government inaction
  2. Criticism: Salling appointment of judges to the High Courts and doing nothing to increase the number of courts and judges
  3. CJI: What is the point of ‘Make in India’ and inviting FDI when investors would worry about timely delivery of justice
  4. Judicial appointments remained in limbo because of the prolonged litigation over National Judicial Appointments Commission laws

Judicial Standards and Accountability Bill

  1. It provided for a comprehensive mechanism for handling complaints made by citizens
  2. Complaints can be grounds of alleged misbehaviour and incapacity against judges of the Supreme Court and high courts
  3. Provided for a mechanism to take action against those found guilty after investigation
  4. Laid down judicial standards and made it incumbent on the judges to declare their assets and liabilities

Bill to monitor complaints against judges

  1. The government favours bringing afresh The Judicial Standards and Accountability Bill
  2. It seeks to change the present system of probing complaints of “misbehaviour and incapacity” against judges of the Supreme Court and high courts
  3. The bill was earlier brought by UPA government but had lapsed following the dissolution of the 15th Lok Sabha

There will be no wholesome change in Collegium system, says SC

To focus on transparency, eligibility criteria, secretariat of Collegium, complaint redressal mechanism.

  1. Constitution Bench led by Justice J S Khehar was categorical in making it known to the government that although it had invited suggestions to improve the system.
  2. It is not going to be a wholesome change. It has to be within the parameters (evolved by nine judges in 1990s).
  3. SC would address four specific issues, transparency, eligibility criteria for appointments, setting up a secretariat of Collegium and a complaint redressal mechanism.
  4. Government sought a role for the President and the PM in the appointment process, saying nominations for appointment as a SC judge may also be made by them.

Could bringing the present collegium system under RTI strengthen it?

The extent of disclosure and effective working of the model is likely to be heard and decided by the five-judge bench starting 3 November

Photo: Mint

  1. Suggestions comes out that the judicial administration should be brought under the purview of the RTI Act, 2005, to ensure transparency in the judicial system.
  2. Though the NJAC has been held as unconstitutional as a whole, the judiciary has not failed to acknowledge flaws in the prevailing collegium system.
  3. By opaque nature of the collegium system, the first step anticipated in making the system transparent would be to bring it under the ambit of the RTI Act.
  4. Bringing RTI of collegium into effect would ensure that reasons for non appointment are recorded leading to fair appointments.

This move would ensure that information pertaining to appointment of a particular candidate to the higher judiciary is available to everybody, Isn’t it?


:( We are working on most probable questions. Do check back this section.

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