Judicial Appointments Conundrum Post-NJAC Verdict

Judicial Appointments Conundrum Post-NJAC Verdict

Judicial selection needs more than a tweak

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Collegium system, NJAC

Mains level : Transparency issues is Judicial Appointments

In recent weeks, the Supreme Court of India’s collegium has been busy. New judges have been appointed to the Court on its advice and long overdue vacancies have been filled up.

Read this before proceeding:

Collegium recommends nine judges for Supreme Court

What is the matter of concern?

Ans. Transparency in appointments

  • These recommendations are seen as reflective of a new and proactive collegium.
  • What ought to concern us, though, is that long-standing apprehensions about the collegium’s operation remain unaddressed: specifically, its opacity and a lack of independent scrutiny of its decisions.
  • These misgivings are usually seen in the context of a battle between the executive and the judiciary.
  • Less evident is the effect that the failings have on the status of the High Courts.
  • Today, even without express constitutional sanction, the collegium effectively exercises a power of supervision over each of the High Courts.

No specified reasons for Exclusion

  • For nearly two years, despite vacancies on the Bench, the collegium made no recommendations for appointments to the Supreme Court.
  • The conjecture in the press was that this logjam owed to a reluctance amongst some of its members to elevate Justice Akil Kureshi to the Court.
  • Indeed, it was only after a change in its composition that the panel recommended on August 17 a list of names for elevation. This list did not contain Justice Kureshi’s name.
  • The perfunctory nature of the collegium’s resolutions means that we do not know the reasons for his exclusion.
  • We also do not know why five Chief Justices, including Justice Kureshi, and several other puisne judges are now being transferred to different courts.

The public has right to know

  • This is not to suggest that these decisions are unfounded. It is possible that each of the choices made is predicated on administrative needs.
  • But whatever the rationale, surely the public has a right to know.

What is needed?

Ans. Striking a balance in Separation of Power

  • Separation of powers is a bedrock principle of Indian constitutionalism. Inherent in that idea is the guarantee of an autonomous judiciary.
  • To that end, the process of appointing and transferring judges assumes salience.
  • But the question of how to strike a balance between the sovereign function of making appointments and the need to ensure an independent judiciary has long plagued the republic.

As suggested by Dr. Ambedkar

  • The Constitution’s framers wrestled over the question for many days. Ultimately, they adopted what Dr. B.R. Ambedkar described as a “middle course”.
  • That path stipulates the following: Judges to the Supreme Court are to be appointed by the President of India in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit.
  • Judges to the High Courts are to be appointed by the President in consultation with the CJI, the Governor of the State and the Chief Justice of that court.
  • In the case of transfers, the President may move a judge from one High Court to another, after consulting the CJI.

Where does primacy rest?

Ans. In a transparent Collegium system

  • In this design, there is no mention of a “collegium”.
  • But since 1993, when the Supreme Court rendered a ruling in the Second Judges Case, the word consultation has been interpreted to mean “concurrence”.
  • What is more, that concurrence, the Court held there, ought to be secured not from the CJI alone, but from a body of judges that the judgment described as a “collegium”.
  • Thus, the Court wound up creating a whole new process for making appointments and transfers and carved out a system where notional primacy came to rest in the top echelons of the judiciary.

This procedure has since been clarified.  But there is, in fact, no actual guidance on how judges are to be selected.

The NJAC and after

  • In 2015, Parliament sought to undo the procedures put in place by the Court through the 99th Constitutional Amendment.
  • The National Judicial Appointments Commission (NJAC), that the law created, comprised members from the judiciary, the executive, and the lay-public.
  • But the Court scrapped the efforts to replace the collegium and it held in the Fourth Judges Case that judicial primacy in making appointments and transfers was an essential feature of the Constitution.
  • In other words, the Court held that a body that found no mention in the actual text of the Constitution had assumed a position so sacrosanct that it could not be touched even by a constitutional amendment.

Assessing the NJAC

Ans. The NJAC was far from perfect

  • There were legitimate fears that the commission might have resulted in the appointment of malleable judges.
  • Therefore, it is plausible to argue that until a proper alternative is framed, the collegium represents the best solution.
  • This is that allowing senior judges of the Supreme Court primacy in matters of appointments and transfers is the only practical way to guarantee the independence of the judiciary.

Promises are yet unfulfilled over transparency

  • When the Court struck down the NJAC, it also promised to reform the existing system. Six years down the line those promises have been all but forgotten.
  • The considerations that must go into the procedure for selecting judges is left unexplained.
  • The words “merit” and “diversity” are thrown around without any corresponding debates on what they, in fact, mean.
  • Somehow, amidst all of this, we have arrived at a consensus that enveloping a veil over the process of selection is essential to judicial autonomy, and that there is no legitimate reason why the public ought to know how judges are chosen and transferred.

Way forward

  • It is clear that we have come a long way from a time when Chief Justices of High Courts declined invitations to the Supreme Court, because they valued the work that they were already entrusted with.
  • Restoring High Courts to that position of prestige must be seen as essential to the process of building trust in our Constitution.
  • Achieving this will no doubt require more than just a tweak in the process of appointments.

Conclusion

  • It is clear is that the present system and the mysteries underlining the decision-making only further dilute the High Courts’ prominence.
  • At some point we must take seriously the task of reforming the existing scheme because the status quo is ultimately corrosive of the very institutions that it seeks to protect.

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By Explains

Explain the News

Judicial Appointments Conundrum Post-NJAC Verdict

Supreme Court Collegium shows the way in judicial appointments

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 142 (1)

Mains level : Paper 2- Issue of judicial appointments

Context

For the first time ever, the Supreme Court Collegium led by the Chief Justice of India (CJI) recommended/selected as many as nine persons at one go to be appointed to the apex court.

Significance of the move

  • It is a happy augury that the present CJI, Justice N.V. Ramana, could, along with his colleagues in the Collegium, select the judges within a short period of his assumption of office.
  • It is a tough task to build a consensus around one person or a few persons, the CJI being the head of the Collegium, has an unenviable task in building that consensus.
  • Therefore, it can be said without any fear of contradiction that the job of selecting as many as nine judges for appointment to the Supreme Court was done admirably well.
  •  The latest resolution of the Collegium gave effect to the multiple judicial pronouncements of the top court on the subject.
  • The selection of three women judges, with one of them having a chance to head the top court, a judge belonging to the Scheduled Caste and one from a backward community and the nine selected persons belonging to nine different States, all point towards an enlightened and unbiased approach of the members of the Collegium.
  • A needless controversy is sought to be raised by a section of the media about this round of selection citing the non-existing ‘Rule of Seniority’.

Various norms to be followed in judicial appointment

1) Consideration of merit

  • Article 142 (1) contains the concept of ‘complete justice’ in any cause or matter which the Supreme Court is enjoined to deliver upon.
  • So, while selecting a judge to adorn the Bench, the fundamental consideration should be his/her ability to do complete justice.
  • In the Supreme Court Advocates-on-Record Association and Another vs Union of India (1993), the Court spelt out the parameters within which to accomplish the task of selecting candidates for appointment to the higher judiciary.
  • The most crucial consideration is the merit of the candidates.
  • The merit is the ability of the judge to deliver complete justice.

2) Plurality

  • The nine judges who decided the above case were quite aware of these compelling realities.
  • So, they said, “In the context of the plurastic [pluralistic] society of India where there are several distinct and differing interests of the people with multiplicity of religions, race, caste and community and with the plurality of culture, it is inevitable that all people should be given equal opportunity in all walks of life and brought into the mainstream.”

3) Transparency

  • India is perhaps the only country where the judges select judges to the higher judiciary.
  • It is, therefore, necessary to make the norms of selection transparent and open.
  •  In 2019, a five judge Bench of the Supreme Court, of which the present CJI was also a member, laid emphasis on this point.
  • The Bench observed: “There can be no denial that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial office and making judicial appointments”.

Thus, the essence of the norms to be followed in judicial appointments is a judicious blend of merit, seniority, interests of the marginalised and deprived sections of society, women, religions, regions and communities. 

Consider the question “What are the various norms to be followed by the Collegium for judicial appointments? What are the issues with Collegium system of judicial appointment?”

Conclusion

The Collegium has started doing its job. Now, it is time for the Government to match the pace and take the process of appointments to its logical conclusion at the earliest.

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By Explains

Explain the News

Judicial Appointments Conundrum Post-NJAC Verdict

Collegium recommends nine judges for Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Collegium system, NJAC

Mains level : Not Much

The Supreme Court Collegium, led by Chief Justice of India (CJI) N.V. Ramana has recommended to the government nine names for appointment as apex court judges.

Significant appointments

  • The Collegium has for the first time, in one single resolution, recommended three women judges.
  • It has thus sent a strong signal in favor of the representation of women in the highest judiciary.
  • The process scripted history by naming Karnataka High Court judge B.V. Nagarathna, who may become India’s first woman CJI.

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.

Evolution: The Judges Cases

  • 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.
  • 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.
  • Third Judges Case (1998): 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 are 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

  • Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
  • Judges appointing Judge: 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.
  • Criteria: 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.

Scope for transparency

  • In respect of appointments, there has been an acknowledgment 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 Collegium’s resolutions are now posted online, but reasons are not given.

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Back2Basics:

By Explains

Explain the News

Judicial Appointments Conundrum Post-NJAC Verdict

[pib] Justice Ramana appointed as Chief Justice of India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Appointment and removal of SC Judge

Mains level : CJI Appointment

The President of India, in the exercise of the powers conferred by clause (2) of Article 124 of the Constitution of India, appointed Shri Justice NV Ramana, a Judge of the Supreme Court, to be the CJI.

Chief Justice of India

  • The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.

Appointment

  • The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
  • Earlier, it was a convention to appoint seniormost judges.
  • However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
  • Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.

Qualifications

The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:

  • He/She is a citizen of India and
  • has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
  • has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
  • is, in the opinion of the President, a distinguished jurist

Functions

  • As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
  • In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.

On the administrative side, the CJI carries out the following functions:

  • maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court

Try this PYQ:

Q. Who/Which of the following is the custodian of the Constitution of India?

(a) The President of India

(b) The Prime Minister of India

(c) The Lok Sabha Secretariat

(d) The Supreme Court of India

Removal

  • Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
  • Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
  • He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
  • The voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.

About Justice Ramana

  • Justice Ramana will take over as 48th Chief Justice of India.
  • He is a first-generation lawyer, having an agricultural background, and hails from Ponnavaram Village, Krishna District in Andhra Pradesh.
  • He is an avid reader and literature enthusiast. He is passionate about Carnatic music.

His legal career

  • He was called on to the Bar on 10.02.1983.
  • Initially, he was appointed as a Permanent Judge of Andhra Pradesh High Court on 27.06.2000. He also functioned as Acting Chief Justice of his parent High Court from 10.3.2013 to 20.5.2013.
  • He practiced in the High Court of Andhra Pradesh, Central and Andhra Pradesh Administrative Tribunals, and the Supreme Court of India.
  • He specialized in Constitutional, Civil, Labour, Service, and Election matters. He has also practiced before Inter-State River Tribunals.
  • He served as Judge of the Supreme Court of India from 17.02.2014.
  • He has also served as the Executive Chairman of the National Legal Services Authority (NALSA) since 27.11.2019.

By Explains

Explain the News

Judicial Appointments Conundrum Post-NJAC Verdict

Vacancies in High Courts

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Collegium System

Mains level : Judicial appointments and transparency issues

The Supreme Court has asked the government to clarify on the status of 55 recommendations made by the Collegium for judicial appointments to various High Courts six months to nearly a year-and-a-half ago.

What is the news?

HC Vacancies

  • The total sanctioned judicial strength in the 25 High Courts is 1,080.
  • However, the present working strength is 661 with 419 vacancies as on March 1.
  • The Supreme Court has been repeatedly conveying to the government its growing alarm at the judicial vacancies in High Courts.
  • Some of these High Courts are functioning only with half their sanctioned judicial strength.
  • On average, the courts suffered at least 40% judicial vacancies.

What is the 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.

Try this PYQ:

Q.With reference to the Constitution of India, consider the following statements:

  1. No High Court shall have the jurisdiction to declare any central law to be constitutionally invalid.
  2. An amendment to the Constitution of India cannot be called into question by the Supreme Court of India.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

 

Answer: (d)

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.

By Explains

Explain the News

Judicial Appointments Conundrum Post-NJAC Verdict

Justice NV Ramana set to take over as 48th CJI

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Appointment of CJI

Mains level : Judicial appointments and transparency issues

The Chief Justice of India Sharad Bobde has recommended Justice N.V. Ramana, the senior-most judge of the Supreme Court, as the next top judge from April 24.

Chief Justice of India

  • The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.

Appointment

  • The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
  • Earlier, it was a convention to appoint seniormost judges.
  • However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
  • Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.

Qualifications to be a SC Judge

The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:

  • He/She is a citizen of India and
  • has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
  • has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
  • is, in the opinion of the President, a distinguished jurist

Also read:

Explained: Collegium of Judges

Functions

  • As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
  • In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.

On the administrative side, the CJI carries out the following functions:

  • maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court

Try this PYQ:

Q. Who/Which of the following is the custodian of the Constitution of India?

(a) The President of India

(b) The Prime Minister of India

(c) The Lok Sabha Secretariat

(d) The Supreme Court of India

Removal

  • Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
  • Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
  • He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
  • The voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

By Explains

Explain the News

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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Judicial Appointments Conundrum Post-NJAC Verdict

[op-ed snap] Strength in numbers: On judge vacancies

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Judicial vacancies - Appointments delay

Context

On December 10, the Supreme Court of India said that 213 names recommended for appointment to various High Courts are pending with the government. 

Judicial Vacancies

  • High court judges – Data show that 38% of all sanctioned posts for High Court judges are lying vacant as of December 1.
  • Half capacity – High Courts of some states including Andhra Pradesh and Rajasthan are functioning at below half their actual capacity. 

Timelines

  • At each level of the appointment process of judges to the higher judiciary, there are time periods specified. 
  • MoP – The Memorandum of Procedure states that appointments should be initiated at least 6 months before a vacancy arises and 6 weeks of time is specified for the State to send the recommendation to the Union Law Minister. After this, the brief is to be sent to the Supreme Court collegium in 4  weeks. 
  • Collegium – Once the collegium clears the names, the Law Ministry has to put up the recommendation to the Prime Minister in 3 weeks who will, in turn, advise the President. 
  • No time limit – Thereafter no time limit is prescribed and the process comes to a standstill.

Supreme Court judgment

  • Deadline – The court has fixed 6 months to appoint at least those whose names the Supreme Court collegium, the High Courts and the Government have agreed upon. 
  • The Supreme Court’s recommendation now of a time limit to these appointments is welcome. 
  • Post NJAC – The equation between the court and the Union Government has been strained by the former’s decision to strike down the move to set up a National Judicial Appointments Commission.
  • NJAC – It would have been responsible for appointments and transfers to the higher judiciary in place of the Supreme Court collegium. 
  • Procedural lapses – reports of delays in appointments have become increasingly commonplace, with both sides testy over the procedure. 
  • Binding – If the collegium reiterates the names, the court said that the government has no option but to appoint the judges. 

Way ahead

  • It is for the court to take an increasingly firm hand to ensure that the collegium system that it fought so hard to protect actually functions effectively. 
  • Vacancies in the higher judiciary threaten every aspect of the justice delivery system and it is the courts, and the government, that always take the blame for any shortfall in justice.

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Judicial Appointments Conundrum Post-NJAC Verdict

[op-ed snap] Letting in light

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Judicial accountability

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.”

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Judicial Appointments Conundrum Post-NJAC Verdict

Explained: Second Judges Case, 1993

Note4Students

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.

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

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Judicial Appointments Conundrum Post-NJAC Verdict

Explained: Collegium of Judges

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Collegium system

Mains level : Issues over Judicial appointments and transfers

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.

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Judicial Appointments Conundrum Post-NJAC Verdict

Supreme Court pushes for ‘full’ strength of 31

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Collegium system

Mains level : Judiciary and associated issues

  • 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

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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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