Judicial Appointments Conundrum Post-NJAC Verdict

Issues related to Judicial appointment

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Collegium System

Mains level : Judicial appointments and transparency issues

The SC Collegium has recommended the transfer of judges of several HC, including the transfer of a Justice of the Andhra Pradesh High Court.

Must read:

[Burning Issue] Uproar over AP CM’s letter to CJI

What is Collegium?

  • Collegium system of the Supreme Court (SC) and the High Courts (HCs) of India is based on the precedence established by the “Three Judges Cases (1982, 1993, 1998) “.
  • It is a legally valid system of appointment and transfer of judges in the SC and all HCs.
  • It is a system of checks and balance, which ensures the independence of the senior judiciary in India.

The Collegium System: A detailed backgrounder

  • The Collegium of judges is the Indian SC’s invention.
  • It does not figure in the Constitution, which says judges of the SC and HC 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  • After some judges were superseded in the appointment of the CJI in the 1970s and attempts made subsequently to effect a mass transfer of High Court judges across the country.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.

The Judges Cases

  • The First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
  • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
  • The Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
  • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
  • On a Presidential Reference in its opinion, the SC, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

The procedure followed by the Collegium:

Appointment of CJI

  • The President of India appoints the CJI and the other SC judges.
  • As far as the CJI is concerned, the outgoing CJI recommends his successor.
  • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
  • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

Other SC Judges

  • For other judges of the top court, the proposal is initiated by the CJI.
  • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
  • The consultees must record their opinions in writing and it should form part of the file.
  • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

For HC

  • The CJs of HC is appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
  • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
  • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
  • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Does the Collegium recommend transfers too?

  • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
  • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
  • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
  • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
  • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
  • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

Loopholes in the Collegium system

  • Many have faulted the system, not only for its being seen as something unforeseen by the Constitution makers but also for the way it functions.
  • Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
  • The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
  • Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
  • Embroilment in public controversies and having relatives practising in the same High Court could be common reasons for transfers.

Scope for transparency

  • In respect of appointments, there has been an acknowledgement that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
  • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
  • Even the majority opinions admitted the need for transparency, now the Collegium’s resolutions are now posted online, but reasons are not given.
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