From UPSC perspective, the following things are important :
Prelims level : Collegium system
Mains level : Issues over Judicial appointments and transfers
- A Bench of the Supreme Court, led by CJI Ranjan Gogoi, has dismissed a bunch of petitions seeking a review of the court’s judgment in the Second Judges Case in 1993, which led to the Collegium system of appointment of judges.
- The Collegium of judges is the Indian Supreme Court’s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
What was the Second Judges Case of 1993?
- In The Supreme Court Advocates-on-Record Association (SCARA) Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision in S P Gupta, and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
- The Case accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments.
- The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
- Here the word ‘consultation’ would shrink in a mini form.
- Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.
- Ushering in the collegium system the recommendation should be made by the CJI in consultation with his two seniormost colleagues, and that such recommendation should normally be given effect to by the executive.
- It added that although it was open to the executive to ask the collegium to reconsider the matter if it had an objection to the name recommended.
- If, on reconsideration, the collegium reiterated the recommendation, the executive was bound to make the appointment.
Criticisms of the Judgement
- Critics argue that the system is non-transparent since it does not involve any official mechanism or secretariat.
- It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure.
- There is no public knowledge of how and when a collegium meets, and how it takes its decisions.
- Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.
What efforts have been made to address these concerns?
- The government of 1998-2003 had appointed the Justice M N Venkatachaliah Commission to opine whether there was need to change the Collegium system.
- The Commission favoured change, and prescribed a National Judicial Appointments Commission (NJAC) consisting of the CJI and two seniormost judges, the Law Minister, and an eminent person from the public, to be chosen by the President in consultation with the CJI.
- The NDA 2 regime had NJAC as one of its priorities, and the constitutional amendment and NJAC Act were cleared swiftly.
- In 2015, a Constitution Bench declared as unconstitutional the NJAC Bill.
- The Bench sealed the fate of the proposed system with a 4:1 majority verdict that held that judges’ appointments shall continue to be made by the collegium system in which the CJI will have “the last word”.
- Justice J Chelameswar wrote a dissenting verdict, criticising the collegium system by holding that “proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks”.