Judicial Appointments Conundrum Post-NJAC Verdict

[op-ed snap] It’s time for the Collegium system to go

Note4students

Mains Paper 2: Constitution| Separation of powers between various organs dispute redressal mechanisms and institutions. Structure, organization and functioning of the Executive and the Judiciary.

From UPSC perspective, the following things are important:

Prelims level: Basics knowledge of the collegium system.

Mains level: The news-card analyses the issues with the Collegium system wrt recent decision of SC in the appointment of judges, in a brief manner.


Context

  • The recent decision of the Collegium to inexplicably replace two high court chief justices selected for elevation has again raised concerns about the methods of working of the Collegium.
  • The process for the appointment of judges lies at the heart of an independent judiciary.
  • Over the years, this process has manifested itself in the questionable form of the Collegium of judges, which decides on appointments to both the SC and the high courts.

Background

  • In the inaugural session of the Supreme Court of India (SC), held 69 years ago, an independent judiciary that would be the third pillar in India’s constitutional framework was promised, counterbalancing the legislature and the executive.
  • In the Constituent Assembly debates that preceded the creation of the SC, Jawaharlal Nehru, speaking on higher judicial appointments, said that the judges selected should be of the “highest integrity” and be persons “who can stand up against the executive government and whoever might come in their way”.

Issues with the recent decision

  • The Collegium’s recent decision has once again shown that it is opaque. Moreover, it is not accountable to any other authority.
  • The Collegium’s recent decision to appoint Justice Dinesh Maheshwari and Justice Sanjiv Khanna, by retracting and superseding earlier selections of fine judges in their own right, is of concern.
  • Justice Maheshwari was earlier rejected by the Collegium in its December 2018 meeting.
  • Justice Khanna has been selected over his three senior colleagues, Justices Pradeep Nandrajog, Gita Mittal and S Ravindra Bhat.
  • The concerns raised by the experts is less about the seniority convention than about the lack of transparency.

The Seniority Convention

  • Many skirmishes took place between the judiciary and the executive in the early decades of the republic.
  • However, the first major appointments-related decision that turned this convention on its head was the executive’s move to anoint A N Ray, the fourth most senior judge of the SC at the time, as the Chief Justice of India.
  • This was the era before the Collegium came into being, and was an appointment that provoked much-heated debate.
  • The Second Judges’ case of 1993, which led to the formation of a collegium of high-ranking judges identifying persons for appointment to the SC and high courts, chose to re-state the seniority convention in appointments.
  • The decision clarified that “Unless there be any strong cogent reason to justify a departure, that order of [inter-se] seniority [amongst Judges of High Courts] must be maintained between them while making their appointment to the Supreme Court.”

Concerns over the Collegium system

  • Collegium system emphasizes excessively on seniority.
  • However, following the seniority convention offers a semblance of certainty and transparency, even though it takes away from selecting judges on other objective criteria such as merit and competence.
  • At times, the sanctity of Collegium’s own decisions no longer stands.
  • Its own previous decision to appoint other persons to the Supreme Court was reversed, without any explanation or justification.
  • Besides this, no one knows how judges are selected, and the appointments made reek of biases of self-selection and in-breeding.
  • Nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles.
  • Lack of checks and balances: With its ad hoc informal consultations with other judges, which do not significantly investigate criteria such as work, standing, integrity and so on, the Collegium remains outside the sphere of legitimate checks and balances.

Why Collegium seems to be opaque?

  • The lack of a written manual for functioning,
  • the absence of selection criteria,
  • the arbitrary reversal of decisions already taken,
  • the selective publication of records of meetings.

National Judicial Appointments Commission (NJAC)

In the last few years, there was some agreement that the Collegium system of appointments had failed, and there is a need for a more transparent and accountable system.

The proposal for a National Judicial Appointments Commission (NJAC) came about seeking to:

  • guarantee the independence of the system from inappropriate politicisation,
  • strengthen the quality of appointments,
  • enhance the fairness of the selection process,
  • promote diversity in the composition of the judiciary, and
  • rebuild public confidence in the system.

NJAC declared Unconstitutional, a missed opportunity

  • The SC in its majority decision declared the NJAC unconstitutional and missed an opportunity to introduce important reformatory changes in the functioning of the judiciary.
  • According to the experts, the supreme court could have read down the law, and reorganised the NJAC to ensure that the judiciary retained majority control in its decisions.
  • However, It did not amend the NJAC Act to have safeguards that would have made it constitutionally valid.
  • It also did not reform the Collegium in any way to address the various concerns voiced by one and all, including the Court itself.
  • Instead, to the disappointment of all those who hoped for a strong, independent and transparent judiciary, it reverted to the old Collegium-based appointments mechanism.

Conclusion

  • As a democracy, it seems anomalous that we continue to have a judiciary whose essence is determined by a process that is evidently undemocratic.
  • There is an urgent need for the reforms in the existing selection process.
  • The Supreme Court too had referred to the need to introduce reforms while deciding the NJAC matter. However, there haven’t been any apparent sign of reform in the system.
  • There is a need to revisit the Collegium issue, either through a Presidential reference to the Supreme Court, or a constitutional amendment with appropriate changes in the original NJAC law.
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