Judicial Appointments Conundrum Post-NJAC Verdict

Nov, 14, 2019

[op-ed snap] Letting in light

Context

The Supreme Court’s decision to open the office of CJI to scrutiny under the Right to Information Act is welcome. The ruling comes nine years after the Delhi High Court ruled in favour of bringing CJI’s office under RTI. 

The judgement – accountability

  • The Court appeared as a litigant before its judicial avatar and argued against transparency and eventually ruled against itself. 
  • Supreme Court has insulated itself from public scrutiny and gives little insight into its own functioning.
  • The verdict pushes towards greater judicial accountability. 
  • The process of judicial appointments is often complicated by the reluctance of the court to make the reasons and compulsions behind its decisions public. 
  • While the government discloses its reasons for not accepting the collegium’s recommendations, the judiciary’s defence remains absent from the public debate.

Limited by

  • The verdict binds the court to accept applications seeking information but the process of obtaining it may not be easy. 
  • The ruling allows for an ordinary citizen to seek information on appointments, transfers of judges to the high courts and Supreme Court. 
  • But the reasons behind these recommendations could still be clouded in secrecy as the decisions of the collegium are largely based on reports of the Intelligence Bureau which is exempted from providing information under RTI. 
  • The verdict itself asks information commissioners to keep in mind the right to privacy and the independence of the judiciary while deciding on RTI requests. 
  • Justice NV Ramana cautions that the RTI must not be used as a tool of surveillance against the court.

Way ahead

  • The transition to transparency may not be easy. It hinges on the actions of the chief justice of India, as the administrative head of the court. 
  • Even when former CJI Dipak Misra decided that collegium decisions will be published on the Supreme Court website, CJI Ranjan Gogoi signalled a departure from the practice after 256 decisions were published. 
  • Just two months ago, the collegium issued an unusual statement that thought “it would not be in the interest of the institution to disclose the reasons for the transfer.”
Nov, 07, 2019

Explained: Second Judges Case, 1993

News

  • 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.

Collegium System

  • 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.

CJI’s role

  • 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”.

Back2Basics

Explained: Collegium of Judges

Sep, 16, 2019

Explained: Collegium of Judges

Context

  • The recent controversy over the transfer of the Chief Justice of the Madras HC to the Meghalaya HC has once again brought to the fore a long-standing debate on the functioning of the ‘Collegium’ of judges.
  • On being questioned for the transfer as well as the lack of transparency, the Supreme Court has stated that the Collegium indeed had cogent reasons and that these could be revealed, if necessary.

 What is Collegium System?

  • 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.

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 Supreme Court.
  • On a Presidential Reference for its opinion, the Supreme Court, 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 High Courts

  • The CJs of High Courts 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.
May, 10, 2019

Supreme Court pushes for ‘full’ strength of 31

News

  • At one stroke, the Supreme Court Collegium, led by CJI has recommended two judges’ names for elevation to the apex court.
  • If the four judges are elevated without delay, the Supreme Court would reach the full sanctioned strength of 31.

Supreme Court Collegium

  • The Collegium System is a system under which appointments/elevation of judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex Court are decided by a forum of the CJI and the four senior-most judges of the Supreme Court.
  • Article 124 to 147 in Part V of the Indian Constitution envisages the powers, independence and jurisdiction of the Supreme Court.
  • However there is no direct mention of the Collegium either in the original Constitution of India or in successive amendments.
  • This system of appointment of judges came into existence after the Third Judges Case which interpreted constitutional articles on October 28, 1998.
  • The recommendations of Collegium are binding on the government.

Size of the court

  • Initially the Constitution of India provided for a supreme court with a chief justice and 7 judges.
  • In the early years, a full bench of the Supreme Court sat together to hear the cases presented before them.
  • As the work of the court increased and cases began to accumulate, parliament increased the number of judges(including CJI) from the original 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2009 (current strength).

Eligibility of a judge of the Supreme Court

A citizen of India not exceeding 65 years age as per Article 124 of the constitution is eligible to be recommended for appointment, a judge of the Supreme Court, who has been:

  • a judge of one high court or more (continuously), for at least five years, or
  • an advocate there, for at least ten years, or
  • a distinguished jurist, in the opinion of the president, power conferred by clause(2) of article 124 of the Constitution of India
Jan, 18, 2019

[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.
Nov, 20, 2018

[op-ed snap] Criteria for the courts: on the appointment of judges

Note4students

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

From the UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Debate regarding opacity of collegium system and need for a more transparent and constitutional value centred process


Context

Appointments in judiciary

  1. On November 2, four new judges were elevated to the Supreme Court
  2. But neither the Collegium’s discussions on the appointees, as published on the court’s website, nor the popular discourse on the persons chosen concern themselves with a discussion on the records of these judges
  3. We are left with little idea, for instance, on what broad constitutional philosophy these judges espouse, what their approach to constitutional interpretation might be, and on how they might view the general role of the higher judiciary
  4. Contrary to what some might believe, engaging with a judge’s outlook to the Constitution isn’t necessarily inimical to judicial autonomy

Why a knowledge of judges background is essential?

  1. Judicial review gains its legitimacy from the Constitution
  2. Given that judges are unelected officials, its continuing legitimacy might be at stake if we deem it undemocratic to so much as wonder what the constitutional philosophy of a nominee might be
  3. As things stand, the procedure adopted in appointing judges is seen as entirely divorced from the ordinary constraints of a democracy
  4. This wasn’t quite how the Constituent Assembly saw things
  5. The framers believed that the judiciary was integral to the social revolution that the Constitution was meant to usher in

Constitutional provisions

  1. The Constitution comprises a number of special clauses
  2. It provides for, among other things, a fixed tenure for judges of the Supreme Court and the High Courts
  3. It also ensures that salaries and allowances of judges are charged directly to the Consolidated Fund of India
  4. The constitution confers powers on the courts to punish for contempt of themselves
  5. It ensures that judges can only be removed through a process of parliamentary impeachment

Executive still given an important role

  1. The framers of the constitution always believed that the power to appoint judges must vest with the executive
  2. Accordingly, the Constitution provides, in broad terms, that judges to the Supreme Court would be appointed by the President in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit

Judiciary resisting executive interference

  1. Through a series of rulings, the Supreme Court replaced the consultative method prescribed by the Constitution with one that gave the CJI and his four senior-most colleagues (the “Collegium”) primacy in selecting candidates
  2. This system has proved to be notoriously opaque
  3. Efforts to replace it with a National Judicial Appointments Commission (NJAC) came up a cropper after the court struck down the 99th constitutional amendment, in Supreme Court Advocates-on-Record Association v. Union of India (2015)
  4. The primacy enjoyed by the collegium in making appointments to the higher judiciary, the court declared, was a part of the Constitution’s basic structure

Reasoning for appointments are weak

  1. Only the concerns over the relative seniority of these judges and the extent of State-wise representation kindled the collegium’s attention while making recommendations
  2. The candidates’ merit was also considered
  3. But given that the criteria for selection are entirely unknown, what merit means remains ambiguous, at best
  4. In any event, the general constitutional values of a nominee have never been seen as a benchmark to review merit
  5. The publication of the collegium’s decisions has shown us that the collegium’s workings are mysterious and undemocratic

The government is also not pushing for reforms

  1. For the most part, the government is happy with this arrangement
  2. It clears some recommendations with alacrity while holding back, often for months on end, others comprising nominees that it deems uncomfortable

The need for an independent commission

  1. What we need today is a more sustained discussion on the nature and workings of a body that can potentially replace the collegium
  2. Such a body must be independent of the executive, but, at the same time, must be subject to greater transparency and accountability
  3. This commission must also partake within it a facility for its members to have forthright discussions over the constitutional philosophies that a judge must possess

Way forward

  1. If we fail to bring these issues to the forefront, the rigours of democracy will never permeate into the judiciary
  2. And we will only be further undermining public trust in the credibility of the judicial review

 

Aug, 29, 2018

Law ministry writes to Chief Justice of India Dipak Misra to recommend successor

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Memorandum of Procedure, Appointment of judges in SC

Mains level: Tussle between executive & judiciary in recent times and how it has affected the image of both the institutions


News

Following MoP

  1. The Union Law Ministry has formally communicated to Chief Justice of India Dipak Misra to recommend the name of his successor
  2. The move was according to the convention laid out in the Memorandum of Procedure (MoP), where the law minister at an appropriate time seeks the recommendation of the outgoing CJI for the appointment of the next CJI

MoP provisions

  1. According to the Memorandum of Procedure that governs the appointment of members of the higher judiciary, “appointment to the office of the Chief Justice of India should be of the senior-most judge of the Supreme Court considered fit to hold the office”
  2. Under this process, after receipt of the recommendation of the CJI, the law minister puts it before the Prime Minister who advises the President in the matter of appointment
  3. Whenever there is any doubt about the fitness of the senior-most Judge to hold the office of the Chief Justice of India, consultation with other Judges would be made for the appointment of the next Chief Justice of India
Apr, 14, 2018

[op-ed snap] Rekindling our institutions

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Basic structure of the Constitution, Memorandum of Procedure, Fundamental Duties

Mains level: Concerns raised by judiciary related to appointment process


Context

Prolonged silence in the appointment of judges

  1. The letter by Justice Kurian Joseph to the Chief Justice of India, also sent to 22 companion justices, requests for a bench of seven justices to be formed to “suo moto take up the matter of the government sitting on the two names” for proposed elevation
  2. The prolonged silence writes Justice Kurian Joseph, imperils the “life and existence” of the court

Recent history

  1. The constitutional amendment for National Judicial Commission with a facilitating Act were struck down
  2. This was done on the ground that while the amendment affected judicial review as an aspect of the “basic structure” of the Constitution, the Act, in effect, diminished the “primacy” of the CJI and the collegium
  3. The court went an extra mile to ask the executive to propose a Memorandum of Procedure (MoP)
  4. The executive has not yet finalized it

Accepted procedure for appointment

  1. The Union government had itself accepted the new collegium system of five senior-most justices
  2. It was also accepted that the executive will convey its concerns to the CJI if a security issue was involved
  3. If the collegium reiterated the names, the names will become final

Reform of the system

  1. Any reform of the system will have to come from within the court itself
  2. There are known ways of managing creative discretion but none to eliminate it altogether from the appointments process

What can be done?

  1. A new and creative National Judicial Commission Act can be enacted, which is acceptable to both the high organs of governance
  2. The CJI should be and must remain, in a position of robust dialogue with dissenting brethren and blend his power as master of the roster with respect for the suggestions and opinions of others

Way forward

  1. Constitutional democracy is not imperiled by dissent and disagreement but by an overweening sense of power in one person or institution
  2. The Fundamental Duties of all citizens (under Part IV-A of the Constitution) require us to interrupt power from dreams of limitless sovereignty
Feb, 24, 2018

Govt. behind delay in posting of HC judges: SC

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Appointment procedure in judiciary

Mains level: Rising vacancies in High courts and SC and its consequences


News

Delay in appointment of judges

  1. SC said that the government is inordinately delaying the appointment of judges to High Courts
  2. Judicial vacancies in the 24 High Courts are at an all-time high

HCs also at fault

  1. Instead of sending the fresh names to the government for vetting a month prior to an anticipated judicial vacancy, the names are sent late or not sent at all
  2. In case the fresh names are sent to the government, the files are kept pending at the Executive level for long before they are sent to the Supreme Court Collegium for approval
  3. Even after the clearance of the names by the Collegium, these remain pending at the level of the Executive

Effect of delay

  1. Sometimes, it takes more than one year to complete the process from the date of forwarding the names till appointment
  2. As a result, the careers and tenures of future High Court judges recommended by the Supreme Court Collegium are invariably cut short
Jan, 25, 2018

[op-ed snap] Judicial primacy is not the same as exclusivity

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: NJAC, Article 124 and Article 217

Mains level: NJAC and debates surrounding it


Context

Recent events in the Supreme Court

  1. The Chief Justice of India (CJI) allegedly decides the roster the way he sees fit
  2. But the judges next to him in seniority are equally keen that it be done the conventional way
  3. A certain trust deficit exists within the fraternity of judges

Would NJAC Act have reduced such a possibility?

  1. The National Judicial Appointments Commission (NJAC) was conceived as a six-member body comprising, ex-officio, the CJI, the two senior-most judges of the Supreme Court, and the Union minister of law
  2. In addition, there were to be two eminent persons who would be selected by a committee comprising the CJI, the prime minister of India, and the leader of the opposition in the Lok Sabha
  3. In the matter of the appointment of the Supreme Court and the high court judges, two members combined could exercise a veto power on a candidate
  4. In the proposed NJAC, the judiciary, with three members in a six-member committee, where a two-member coalition can exercise a veto, would have only 50% of the voting power

Judicial primacy Vs Exclusivity

  1. The ideal of judicial primacy as embodied in Articles 124 and Articles 217 of the Constitution has been lauded as a guarantor of judicial independence in appointments
  2. Primacy should imply that if the judges are united, the candidate they back must get appointed
  3. The ideal of judicial primacy need not be equivalent to the demand of judicial exclusivity
  4. Judicial exclusivity refers to the exclusive right of judges to be involved in the selection process as in the current system of the collegium

Does NJAC violate judicial primacy?

  1.  Taking into account the views and votes of entities outside the judiciary in the event the judges are disunited violates exclusivity but not primacy
  2. In the absence of exclusivity, it is possible for a candidate not preferred by the CJI to become a judge
  3. When consulted by the president, as required by the Constitution, the CJI would have to convey its support for a candidate not of its choice

Changes that can be made in proposed NJAC

  1. A five-member NJAC consisting of the CJI, two Supreme Court judges, the Union law minister, and one person of eminence chosen should be considered
  2. To preserve judicial primacy, it is best to do away with the veto altogether and allow any member to file a dissenting note
  3. This dissent can be shared for public consumption after a certain amount of time has elapsed

Way Forward

  1. B. R. Ambedkar had warned against the overweening influence of the executive in judicial appointments
  2. This does not imply that executive participation should be wholly absent
  3. The selection of the person of eminence must work on consensus to prevent the collusion of the political class
  4. In view of allegations of corruption in the judiciary, especially related to the alleged collusion between some judges and lawyers, the relaxation of judicial exclusivity in the manner proposed allows a certain degree of social oversight on judicial appointments
Jan, 12, 2018

Indu Malhotra set to script history

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Appointments in Judiciary, Articles 124 and 217

Mains level: Gender gap existing in judiciary and its effect on judgments delivered


News

First woman advocate being directly promoted

  1. Senior advocate Indu Malhotra is set to make history as the first woman lawyer to be directly appointed as a judge of the Supreme Court
  2. Ms. Malhotra will be the seventh woman judge in the Supreme Court, since it was established 67 years ago, if her appointment goes through

Other achievements

  1. In 2007, she became the second woman to be designated a senior advocate by the Supreme Court only after the legendary Justice Leila Seth, who was given the honour in 1977
  2. She is on the board of trustees in SaveLIFE Foundation and represented the NGO in a case which resulted in the Supreme Court passing a slew of laws to protect Good Samaritans, who save lives in road accidents

Gender gap in SC

  1. There is only one woman judge at present in the Supreme Court which currently has a strength of 25 judges
  2. In 1989, Justice M. Fathima Beevi became the first woman judge in the Supreme Court
  3. Only five women judges have been appointed as Supreme Court judge till now

Back2Basics

Appointments in Judiciary

  1. Appointments to the higher judiciary, governed by Articles 124 and 217, for the Supreme Court and the High Courts respectively are in hands of the executive, or so it appears from a literal reading of the provisions
  2. In the early decades since the adoption of the Constitution, the appointments were made primarily by the executive after consultation with the judiciary as per the provisions of the Constitution
  3. The tectonic shift took place from 1981, where a 7-Judge Bench of the Supreme Court declared that the executive would hold primacy in judicial appointments (First Judges case)
  4. Judiciary regained primacy in appointment of Judges in 1998 (Third judges case)
  5. It was said that the Chief Justice of India, along with senior-most Judges of the Supreme Court would play a primary role in appointments to the judiciary (Collegium system)
Nov, 28, 2017

[op-ed snap] Sink your differences: on the executive-judiciary relationship

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Seperation of powers, Memorandum of Procedure

Mains level: Judicial appointments and all issues related to it


Context

The question whether the judiciary does not trust the Prime Minister to make fair judicial appointments

  1. Differences between the executive and the judiciary are emerging often in the public domain these days
  2. By harping on the need to maintain the balance of power between the executive and the judiciary, representatives of the Union government have risked the impression that they are putting the judiciary on the defensive
  3. It is debatable whether these issues should have been raised in public

Questioning benefits of collegium system

  1. An audit is needed to determine what has been lost or gained since the collegium system was created in 1993
  2. The present collegium system is flawed and lacks transparency, and there is a clear need to have a better and more credible process in making judicial appointments

Rising issues

  1. Whether there is real separation of powers?
  2. Whether public interest litigation has become an interstitial space in which judges give policy directives?
  3. Whether the country needs a better system than the present one in which judges appoint judges?

CJI’s response

  1. Chief Justice responded that the judiciary reposes the same trust that the Constituent Assembly had in the Prime Minister
  2. The judiciary indeed recognised and respected the separation of powers enshrined in the Constitution

Way forward

  1. It is clear that differences over formulating a fresh Memorandum of Procedure for appointments are casting a shadow on the relationship
  2. It is best if both sides take a pragmatic view of the situation and sink their differences on the new procedure, even if it involves giving up a point or two that they are clinging to

 

Nov, 01, 2017

[op-ed snap] Collegium and transparency

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: NJAC(read the attached story)

Mains level: This is the first time when the SC’s recent judgement, on making public its various decision on appointments and transfers, got implemented.


News

Context

  1. Tha article talks about the SC decision to make public, on the court’s website, its various decisions, including its verdicts on persons nominated for elevation as judges to the high courts, its choices of candidates for elevation to the Supreme Court, and its decisions on transfer of judges between different high courts

Some of the decisions given in the first publication

  1. In the cases of A. Zakir Hussain and Dr. K. Arul(candidates nominated for elevation to the Madras High Court) the collegium has said
    “keeping in view the material on record, including the report of Intelligence Bureau [IB] he is not found suitable for elevation to the HC Bench”
  2. The reasons offered for rebuffing the nomination of Vasudevan V.N., a judicial member of the Income Tax Appellate Tribunal, are particularly perplexing. The report said
    “While one of the two consultee-colleagues has offered no views about his suitability, the other colleague has not found him suitable for elevation”
  3. As per record, his name was also recommended by the Collegium of the Calcutta High Court on 28.11.2016 and the Government of West Bengal has expressed its disagreement
  4. Record placed before us also shows that the proposal for his elevation initiated on a previous occasion by the Collegium of the Bombay High Court was rejected by the Supreme Court Collegium on 1st August 2013

Issues related to Vasudevan VN

  1. The collegium, ever since its inception, following the Supreme Court’s judgment in what is known as the Second Judges Case (1993)
  2. The present revelations, much opposed to their perceived objective, scarcely make the system more transparent
  3. In Mr. Vasudevan’s case, for example, we don’t know which of the “consultee-judges objected to his elevation, and why the judge interviewed found him unsuitable
  4. Also the collegium’s express noting that Mr. Vasudevan had previously been recommended by two different high court collegia
  5. These issues concerning the system employed to appoint judges to the Supreme Court and the high courts are of particular salience

What constitution says on the appointments High Court Judges?

  1. The President, who would act on the advice of the council of ministers is required to compulsorily consult certain authorities, including the Chief Justice of India (CJI)
  2. And when making appointments to a high court, the chief justice of that court

Interpretation of the word ‘Consultation’

  1. In 1977, in Sankalchand Sheth’s case, when interpreting the word “consultation,” the Supreme Court ruled that the term can never mean “concurrence”
  2. Hence, the CJI’s opinion, the court ruled, was not binding on the executive
  3. And in 1981, in the First Judges Case, the court once again endorsed this interpretation, partly
  4. But twelve years later, in the Second Judges Case, the court overruled its earlier decisions
  5. It now held that “consultation” really meant “concurrence”
  6. And that the CJI’s view enjoys primacy, since he is “best equipped to know and assess the worth” of candidates
  7. In 1998, in the Third Judges Case, the court clarified its position further
  8. The collegium, it said, will comprise, in the case of appointments to the SC, the CJI and his four senior-most colleagues
  9. And, in the case of appointments to the high courts, the CJI and his two senior-most colleagues

Collegium is a part of the basic structure of the constitution

  1. When the Constitution was altered, through the 99th constitutional amendment
  2. And when the collegium was sought to be replaced by the National Judicial Appointments Commission, the court swiftly struck it down
  3. It ruled, in what we might now call the Fourth Judges Case (2015), that the primacy of the collegium was a part of the Constitution’s basic structure
  4. And this power could not, therefore, be removed even through a constitutional amendment
Oct, 28, 2017

SC questions Centre on judicial posts

Mains Paper2 | Structure, organization and functioning of the Executive and the Judiciary

The following things are important from UPSC perspective:

Prelims: MoP, Attorney General

Mains level: This article talks about the delay in the finalization of the MoP and in the appointment of the regular Chief Justices in the high courts. These are the hot topics for the mains and notes must be made out of this newscard via complementing it with the earlier newcards on the same issue.


News

Context

  • Over a year and 10 months after a Constitution Bench placed its faith in the government to iron out the dos and don’ts of judicial appointments to the Supreme Court and the high courts, the Centre is yet to deliver.
  • Now, the court wants to know why.

Steps taken by the SC in regard to the delay in the finalization of the MoP

    1. SC issued notice to the Attorney General of India, the Centre’s top law officer, to explain why the finalisation of the Memorandum of Procedure (MoP) for appointment of judges to the Supreme Court and the high courts continues to linger.
  • The Supreme Court also wants the government to address it on the delay in appointment of “regular” Chief Justices to various high courts.
    1. The apex court underlined that the arrangement of Acting Chief Justices in high courts should not continue for more than a month.
  • Recently Acting Chief Justice was also appointed to Karnataka High Court, taking the tally of high courts with Acting Chief Justices to seven.
  1. The Bench posted the hearing for later in the November while appointing senior advocate K.V. Vishwanathan as amicus curiae.

The Delay

  • It recorded in a written order that it has been about two years since a five-judge Constitution Bench tasked the Centre with the drafting and finalisation of the MoP.
  1. The decision to give the job to the government was an aftermath of the same Constitution Bench’s historic decision to strike down the government’s National Judicial Appointments Commission (NJAC) law.
  2. The NJAC law had given politicians an equal say in judicial appointments to constitutional courts.
  3. Even though no time limit was fixed by this Court for finalisation of the MoP, the issue cannot linger on for an indefinite period.

The Petition

  1. The petition besides questioning the delay in the finalisation of MoP, also raised the issue of delay in the appointment of regular Chief Justices in high courts despite the recommendation of the Supreme Court.
  2. The bench observed that there was substance in submission about the undue delay in the appointment of regular Chief Justices in high courts.
  3. The court noted that the process of appointment should start well in advance to prevent piling up of vacancies.
  4. Judicial vacancies continue to be a formidable problem across the 24 high courts. Out of an approved total strength of 1079 high court judges, there are 387 vacancies as of October 1, 2017.
  5. Referring to the contempt proceedings against former Madras High Court judge, the Bench referred to the judgment in the case that had suggested re-visiting the judicial appointments process and the need for an alternative to impeachment of an erring judge.

                                                                                                                                                                                              

 

Oct, 24, 2017

[op-ed snap] The gown and the Bench

Image Source

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Important step taken by the SC to counter strong criticism from the Law community. It will help in raising transparency level in Judicial System. Complement this newscard with our previous newscard on an another development of the same kind, click here. Both of the newscard shows rising transparency level in our judicial system.


News

Context

  1. The article talks about a new permanent committee and guidelines for designating lawyers in the SC and HC as senior advocates

New guidelines by the SC

  1. The SC has laid down guidelines for designating lawyers in the SC and HC as senior advocates
  2. Now, applications will be examined by a permanent committee known as the Committee for Designation of Senior Advocates
  3. The committee will publish the names of candidates on the respective courts’ websites to ensure transparency
  4. Current system: Until now, the judges of the SC and HC had the sole discretion of according this status to advocates

Origin of collegium system

  1. Political interference in the selection of judges in the third and fourth decades of independent India resulted in the collegium system where judges select judges

The Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014

  1. The opaque system and unsatisfactory selection, transfer, and elevation of judges to the SC caused disquiet and led to the passing of the acts
  2. The acts sought to give politicians and civil society a final say in the appointment of judges to the highest courts
  3. In 2015, a Constitution Bench of the SC declared these unconstitutional on the ground that the composition of the NJAC did not provide adequate representation to those from the judiciary
  4. It is in this context that one has to welcome the permanent committee

Composition of the permanent committee

  1. It will consist of the
    (1) Chief Justice of India,
    (2) two senior-most judges of the Supreme Court/ High Courts,
    (3) the Attorney General of India/ the Advocate General of State, and
    (4) a member of the Bar to be nominated by the above four members
  2. The committee will have a permanent secretariat
  3. All applications for designation of senior advocate will be submitted to the secretariat
  4. The secretariat will compile all the relevant information with regard to the reputation, conduct, integrity, participation in pro-bono work, reported judgments in which the advocate has appeared, etc. of the candidates
  5. The committee will examine each candidate’s case, interview the candidate, and make its assessment based on a point-based format

Some related concerns

  1. There may be some reservation on the aspect of publishing names on the official website of the court and inviting suggestions as in the recent past
  2. There have been reports of motivated complaints and objections
  3. The secretariat should not be dragged into the jumble of investigating frivolous complaints or objections

The way forward

  1. This institutional mechanism and selection criteria seem suited to substitute the existing collegium system
  2. The executive and the legislature could also seriously consider introducing a new version of the NJAC which incorporates the salient features of this institutional mechanism
  3. The sooner the judiciary adopts such a mechanism for judges too, the better it is for the institution
Oct, 10, 2017

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

Image source

Note4students

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


News

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
Oct, 07, 2017

Now, SC Collegium to make judges' appointments transparent

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Read the B2B.

Mains level: Important step taken by the SC to counter strong criticism from the Law community and people. It will help in raising transparency level in Judicial System.


News

SC’s move to ensure transparency

  1. According to the SC’s decisions, recommendations on judicial appointments, elevations and transfers will be posted on the court website
  2. As a start, the Supreme Court has posted online detailed reasons for its October 3, 2017 recommendations for judicial appointments to the Madras HC and the Kerala HC
  3. Details are now available online under the tag “Collegium Resolutions”

How will it ensure transparency?

  1. The information posted online will “indicate” reasons for the recommendation or rejection of a name for judicial appointment, transfer and elevation to HCs and the SC

Background

  1. Collegium system was being critcised for its opaque mode of functioning while recommending judicial appointments
  2. Recently, a controversy came after the public uproar over the resignation of Karnataka HC judge shortly after his transfer to the Allahabad HC
  3. The mode of functioning of the Collegium had seen criticism, for the first time, from within the Collegium itself in the form of Justice Chelameswar

Why are some judges against this decision?

  1. Proposal to upload the Collegium recommendations indicating reasons had to face strong objections from within the judicial community itself
  2. One of the objections include that posting such information online would cause judicial candidates acute embarrassment and loss of face in case of rejection of their names by the Collegium

Back2basics

To know more about the issue, Click here

Nov, 28, 2016

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.

Nov, 19, 2016

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
Sep, 14, 2016

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
Sep, 06, 2016

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
Sep, 05, 2016

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
Aug, 20, 2016

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
Aug, 18, 2016

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
Aug, 18, 2016

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.
Aug, 15, 2016

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
Aug, 13, 2016

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
Jul, 07, 2016

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
Jul, 05, 2016

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
Jul, 05, 2016

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
May, 09, 2016

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
May, 05, 2016

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
May, 05, 2016

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
Apr, 25, 2016

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
Feb, 08, 2016

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
Nov, 04, 2015

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.
Oct, 27, 2015

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?

 

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