Syllabus
GS Paper 2 – Structure, organization and functioning of the Executive and the Judiciary—Ministries and Departments of the Government; Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies. Statutory, regulatory and various quasi-judicial bodies.
What does this article provide?
The article discusses the recent decision by the Supreme Court collegium to conduct interviews for candidates recommended for elevation as High Court judges, aiming to enhance transparency and diversity in judicial appointments. This article provides insights on the importance of reforms in the judicial appointment process, which can help UPSC CSE aspirants understand the implications for judicial independence and efficiency.
Potential Topics for Prelims
Structure and Functioning of the Supreme Court Collegium, Recent Reforms in Judicial Appointments
Potential Topics for Mains
Analysis of Collegium System Reforms, Impact of Judicial Reforms on Judicial Independence and Transparency
Source
The Hindu
Collegium Reforms
Introduction
Recent developments have emerged regarding the functioning of the Supreme Court of India’s Collegium. Reports indicate that the Collegium will now conduct interviews of candidates recommended for elevation as High Court judges and will, as far as possible, exclude those with close relatives serving as judges in the higher judiciary. These steps aim to enhance transparency and diversity. Although these resolutions might seem straightforward, they underscore the need for meticulous consideration in appointing judges to significant State positions. The move to exclude candidates with kin on the Bench aims to promote a more diverse judiciary, despite the risk of some deserving candidates being overlooked. However, any meaningful reform in the collegium system will require addressing the broader issue of government interference in judicial appointments. The collegium, a product of judge-made law, operates without formal rules and remains unaccountable, leading to concerns about its transparency and ad hoc nature.
Appointment Procedures for Higher Judiciary
- Appointment of Supreme Court judges:
- Article 124: Judges to the Supreme Court are appointed by the President of India in consultation with the Chief Justice of India (CJI) and other judges deemed fit.
- Appointment of High Court judges:
- Article 217: Judges to the High Courts are appointed by the President in consultation with the CJI, the Governor of the State, and the Chief Justice of that court.
- Transfer of High Court judges:
- Article 222: The President may transfer a judge from one High Court to another after consulting the CJI.
- Lack of clarity:
- The constitutional provisions did not clearly define the manner of consultation or transparency in the process.
- Judges Cases:
- First Judges Case (1981): The Supreme Court ruled that “consultation” does not mean “concurrence”, making the CJI’s opinion non-binding on the executive.
- Second Judges Case (1993): The court overruled its earlier decision, holding that “consultation” means “concurrence”, thus making the CJI’s advice binding on the President.
- Third Judges Case (1998): Clarified that the collegium comprises:
- CJI and 4 senior-most judges for Supreme Court appointments.
- CJI and 2 senior-most judges for High Court appointments.
- National Judicial Appointments Commission (NJAC):
- The government, through the 99th Constitutional Amendment, proposed the NJAC to replace the collegium.
- The NJAC included the Union Minister for Law and Justice and two eminent persons, alongside the CJI and the next two senior-most Supreme Court judges.
- Fourth Judges Case (2015):
- The Supreme Court ruled that judicial primacy in judges’ appointments is part of the basic structure of the Constitution.
- Declared the NJAC as unconstitutional and void.
Current Process of Judge Appointments
- Initiation:
- The recommendation to appoint a new judge to a High Court or the Supreme Court, or to transfer a judge between High Courts, originates from the collegium.
- Consultation:
- The collegium makes its recommendation after consulting the “consultee” judges.
- Government Approval:
- The Union government can either accept the collegium’s recommendation or return it for reconsideration.
- If the proposal is resubmitted, the government is obligated to approve it.
- Appointment:
- After the law ministry’s notification, judges are formally appointed by the President.
- Recent Reforms:
- The collegium will now interview candidates recommended for elevation as High Court judges.
- The panel will attempt to exclude from selection those whose close relatives are serving or have served as judges of the High Courts or the Supreme Court, to the extent possible.
Issues with Collegium System
- Absence of Constitutional Mention:
- The collegium is a creation of judge-made law with no formal constitutional or legal basis in any article or statute.
- Government Conflict:
- Government delays in acting on collegium recommendations, thereby stalling appointments.
- Paradox of Primacy:
- While the collegium has primacy in judicial appointments, the government can still stall recommendations.
- Ambiguity in Procedure:
- There are no clear constitutional or legal provisions addressing the deadlock between the judiciary and executive.
- Lack of Transparency:
- Appointments are often seen as a closed-door affair with no prescribed norms for eligibility or selection procedures.
- Diversity Deficiency:
- There is no institutional mechanism ensuring diversity on the Bench.
- Internal Disagreements:
- Conflicting opinions among collegium members hinder its effective functioning.
Way Forward for Judicial Appointments
- Binding Rules:
- Establish a clear set of binding rules to maintain the system’s integrity.
- Balance separation of powers, judicial autonomy, and ensure accountability with independence.
- Reviving NJAC:
- Consider reviving the National Judicial Appointments Commission (NJAC) with necessary amendments and improvements.
- Engage with judicial experts, former judges, and various stakeholders to address the shortcomings in the NJAC Act.
- Efficient Appointments:
- Prioritize prompt and efficient appointments to avoid delays and unnecessary conflicts.
- Collaboration for MoP:
- Collaborate between the government and judiciary to establish a clear and comprehensive Memorandum of Procedure (MoP) for judicial appointments.
- The MoP should incorporate transparency, eligibility criteria, and mechanisms for addressing complaints against candidates.
- Enhancing Transparency:
- The collegium system should adopt measures to enhance transparency in the appointment process.
- Disclose reasons for both the selection and rejection of candidates to build trust in the judiciary.
- Implementing AIJS:
- Explore the possibility of implementing an All-India Judicial Services (AIJS) system to improve the quality of judges in lower courts.
- Seek consensus and input from all stakeholders, including the judiciary, on the establishment and functioning of AIJS.
- Independent Secretariat:
- Establish a well-resourced, independent secretariat for judicial appointments.
Conclusion
While the quest for a process that balances accountability with independence continues, embracing meaningful reforms within the current system remains crucial. The law must be adhered to as it stands. The collegium’s latest proposals address some long-standing concerns, but serious consideration must be given to their implementation.
Historically, the Court has questioned the government when it fails to follow through on resolutions but has refrained from issuing direct compliance orders, possibly to avoid unnecessary confrontation. Ideally, different state branches should work collaboratively to ensure the procedures are fulfilled.
For the collegium system to remain relevant and achieve its goal of maintaining judicial independence, the rulings in the Judges’ cases must be respected. The Court’s role as a counter-majoritarian institution relies not only on its ability to declare the law but also on ensuring that the law is followed. As Chief Justice Coke stated in 1611, “The king hath no prerogative but what the law of the land allows him,” encapsulating the essence of the rule of law.
Read more here about Collegium
Related PYQ
Discuss the desirability of greater representation to women in the higher judiciary to ensure diversity, equity and inclusiveness. [UPSC CSE – 2021 Mains]
Practice Question
Discuss the need for reforms in the Collegium System for judicial appointments in India. How can these reforms balance the principles of accountability, transparency, and judicial independence? (250 words)
Guidelines to Answer
- Introduction:
- Briefly describe the Collegium System and its importance in judicial appointments.
- Mention the recent reforms proposed by the Supreme Court collegium.
- Need for Reforms:
- Highlight issues like lack of transparency, absence of constitutional mention, government conflicts, and lack of diversity.
- Proposed Reforms:
- Discuss the recent proposals like interviews for candidates, excluding those with close relatives in the judiciary, and other transparency measures.
- Mention the revival of the NJAC with necessary amendments and improvements.
- Balancing Principles:
- Explain how reforms can enhance accountability and transparency while maintaining judicial independence.
- Emphasize the importance of collaboration between the judiciary and the government.
- Conclusion:
- Sum up the significance of implementing these reforms for the effective functioning of the judiciary.
- Reiterate the need for clear and binding rules to ensure the system’s integrity.