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.
Context
Centre notified the appointment of 17 judges across eight High Courts and the transfer of 16 judges across several High Courts.
The Indian Context:
In India, the process of judicial appointments, including the nomination of judges, their transfers, and elevations to higher courts, has become a contentious issue that has sparked numerous controversies between the judiciary and the executive branch of the government. This ongoing dispute has resulted in prolonged vacancies in high courts and a backlog of pending cases, both at the high court and Supreme Court levels, creating a significant strain on the country’s legal system.
Over the past five years, we have witnessed a notable escalation in conflicts and standoffs between these two vital organs. The matter has been brought to public attention through numerous public interest litigations, and courtroom discussions have been rife with remarks on this issue. Against this backdrop, it is imperative to delve into the distinctive circumstances that India faces concerning judicial appointments, as it remains a topic of significant concern and debate in the country.
Evolution of Judicial Appointments in India
Ancient India
- Ancient India possessed a diverse legal tradition, encompassing various schools of thought and legal systems.
- Dharma shastra, rooted in religious and moral principles, was a prominent legal source.
- Local customs and traditions held significant sway in resolving legal matters.
- Ruling monarchs issued decrees to establish and enforce laws within their realms.
- At the grassroots level, justice was often administered through councils or Panchayats.
- Panchayats were composed of esteemed elders from communities and villages.
- These councils played a pivotal role in settling disputes and upholding local norms and customs, ensuring a sense of justice prevailed within their respective areas.
Medieval India
- In medieval India, religious leaders aimed to imbue Islam with a strong legal framework, resulting in the establishment of the Sharia as a court system.
- Each provincial capital and major town had its appointed Qazi responsible for conducting trials in the presence of the parties involved.
- The highest court of appeal was the royal court presided over by the King, known as the Mazalim or complaints court.
- During the Mughal period, secular judges were referred to as Mir-adl.
- These judges acted on behalf of the emperor, conducting impartial and personal inquiries and implementing the Qazi’s decisions.
- Emperor Akbar introduced the appointment of two officers called tui-begis, responsible for overseeing adherence to the law.
- This system of judicial appointments and governance remained in place until British colonial rule took control of India.
Under British Rule
- The Regulating Act of 1773, promulgated by the King of England, led to the establishment of the Supreme Court of Judicature in Calcutta.
- A process of Indianization of the judiciary began to take shape, with foundational principles outlined in the Government of India Act, 1919.
- Provisions regarding Indian High Courts were detailed in Part IX of this Act.
- The authority to appoint High Court Judges was vested in His Majesty, the King.
- The responsibility for determining the salaries, allowances, furloughs, and retiring pensions of Judges fell under the purview of the Secretary of State-in-Council.
- The Government of India Act, 1935, introduced the creation of the Federal Court and High Courts.
- Section 200 of the Act stipulated the establishment of the Federal Court, while section 220 dealt with the constitution of High Courts.
- High Court Judges were appointed by His Majesty, as outlined in section 220(2) of the Act.
- The act stipulated that the appointment of every judge of the Federal Court would be made by His Majesty.
Post Independence Situation
- India gained independence in 1947, and in 1950, the Constitution of India was adopted.
- The Supreme Court of India was established as the country’s highest court, endowed with the power of judicial review over legislative and executive actions.
- In India, the process of appointing judges is unique and not borrowed from other countries.
- It is the result of judicial innovation and was established through the ‘Three Judges Case’ adjudicated by the Supreme Court.
- Prior to 1993, judges (both of the Supreme Court and high courts) were appointed by the President of India, who sought consultation from the Chief Justice of India and the two senior-most judges of the Supreme Court.
- With the introduction of the collegium system, the President’s role became nominal, and the collegium was tasked with appointing and transferring judges in the higher judiciary.
- It’s worth noting that the current collegium system is not explicitly mentioned in the Indian Constitution.
Constitutional Provisions
- Articles 124 to 147 in Part 4 of the Constitution pertain to the organization, independence, jurisdiction, powers, procedures and so on of the SC.
- Supreme Court judges are appointed by the President of India.
- For the appointment of the Chief Justice, the President consults with Supreme Court and high court justices as deemed appropriate (Article 124(2)).
- The president appoints the other judges after consulting with the chief justice and as many additional Supreme Court and high court judges as he considers appropriate
- Article 214 of the Constitution of India provides that there shall be a High Court in each State.
- The Judges of a High Court are appointed by the President.
- The Chief Justice of a High Court is appointed by the President after consulting with the Chief Justice of India and the relevant State’s governor.
- The appointment of other High Court judges is done by the President, in consultation with members of the judiciary, including the Chief Justice of India and the Chief Justice of the respective High Court.
The Evolution of a New Judicial Appointment System in India
- The Indian Constitution doesn’t specify the procedure for appointing the Chief Justice of India.
- As a convention, the senior-most judge typically assumed the role of Chief Justice when a vacancy arose.
- This practice was disrupted when A.N. Ray was appointed Chief Justice instead of the senior judges in 1973, leading to protests and resignations.
- A similar scenario occurred on Ray’s retirement when Khanna was superseded, leading to Beg’s appointment and Khanna’s resignation.
- Chandrachud’s appointment as Chief Justice after Beg marked a return to the seniority convention.
- The Supreme Court declared that the senior-most judge should be Chief Justice unless deemed unfit, leading to debates and conflicts between the Executive and the Judiciary.
- This culminated in the filing of petitions, resulting in the First Judges Case-1981, Second Judges Case-1993, and Third Judges Case-1998.
- Collectively, these judgments are known as the Three Judges Cases, and they established the principle of judicial independence.
FIRST JUDGES CASE (1981)
- In the First Judges Case (1981), the Supreme Court clarified that ‘consultation’ in Article 124 did not imply the need for concurrence.
- Thus, the President was not bound to base decisions solely on the Supreme Court’s advice.
- The Court also allowed for the transfer of High Court Judges to other High Courts within a state, even without their consent, stating that such decisions served the public interest.
- Additionally, it was ruled that both the appointment and transfer of judges were in the public interest, and withholding disclosure of these actions was only justified if it could be shown to harm public interest.
SECOND JUDGES CASE (1993)
- The Second Judges Case, officially known as Supreme Court Advocates on Record Association (SCARA) v. Union of India, resulted in the establishment of the collegium system.
- In this case, the Supreme Court overruled the previous S.P. Gupta v. Union of India judgment.
- Key outcomes of the Second Judges Case included establishing the primacy of the Chief Justice of India in judicial appointments and transfers.
- The term “consultation” was defined as requiring concurrence, making the President bound by the Chief Justice’s consultations.
- The Court ruled that the Chief Justice of India, in consultation with two senior judges, should provide recommendations for appointments and transfers.
- Typically, the executive branch should act in accordance with these recommendations.
THIRD JUDGES CASE (1998)
- In the Third Judges Case, the Supreme Court clarified that the term ‘consultation’ in Articles 124, 217, and 222 of the Indian Constitution necessitates the consultation of the Chief Justice of India with the majority of judges.
- The personal opinion of the Chief Justice alone does not constitute valid consultation.
- Consultation, as defined by the Court, would involve a collegium consisting of the four senior-most judges of the Supreme Court.
- The Supreme Court also established rigorous guidelines for the appointment of judges to the Supreme Court and high courts, which have become widely recognized as the Collegium System.
The Collegium System
- The collegium is composed of the Chief Justice of India along with the four senior-most judges of the Supreme Court.
- This collegium forwards recommendations to the President regarding the appointment of judges to the Supreme Court.
- When recommendations are received by the central government, they can either accept the appointments or refer them back to the Supreme Court collegium for reconsideration.
- In cases where recommendations are sent back, the collegium retains the authority to re-propose names for consideration by the central government.
- Once the Supreme Court collegium submits a name to the central government, the government is obligated to accept these recommendations and proceed with the appointments.
- A similar procedure applies to the appointment of judges for the High Courts. The High Court collegium, led by its Chief Justice and the four most senior judges, makes recommendations that follow the same process.
Issues with Collegium System
- A lack of transparency and accountability characterizes the Collegium, with its members often seen as operating in a secretive manner.
- Recent decisions have raised concerns due to the retraction and superseding of previous selections of highly qualified judges.
- The Collegium operates without accountability to any external authority, and several issues highlight this lack of oversight, including the absence of a written manual for its functioning, the lack of clear selection criteria, arbitrary reversals of prior decisions, and selective publication of meeting records.
- The initial decision to establish the Collegium itself was a subject of concern, with Justice Krishna Iyer describing it as a “fraud on the Constitution.”
- The process of judge selection remains shrouded in mystery, and the appointments made often give rise to suspicions of impropriety, self-selection, and nepotism.
- Critics point to instances of ‘Uncle Judges,’ where close relatives and associates of sitting judges are appointed to higher judicial positions, giving rise to nepotism.
- The Law Commission, in its 230th Report (2012), recommended that judges with family members practicing in a High Court should not be appointed within the same High Court to mitigate this issue.
- The absence of transparency, accountability, and external checks allows for subjectivity and individual biases in appointments.
- India stands out as perhaps the only country where judges appoint other judges without the involvement of any other branch of the State.
The Merits of the Collegium System in Judicial Appointments
- The system safeguards the Judiciary’s independence by preventing undue influence from the Executive and Legislature.
- With the Government accounting for approximately half of all court cases, prioritizing the Executive in appointments could potentially impact the Judiciary’s impartiality in its rulings.
- The Executive may lack the necessary expertise to determine Judge qualifications. The Judiciary is often best positioned to assess candidates’ suitability.
- Excessive Government control over the Judiciary can expose Judges to external pressures.
The National Judicial Appointments Commission (NJAC)
- The NJAC was established through a constitutional amendment, the Constitution (Ninety-Ninth Amendment) Act, 2014.
- Aimed at replacing the existing Collegium system for judge appointments.
- The NJAC’s composition includes six members:
- The Chief Justice of India.
- Two most senior judges of the Supreme Court.
- The Law Minister,
- and two ’eminent persons.’
- These eminent individuals are nominated for a three-year term by a committee comprising the Chief Justice, Prime Minister, and Leader of the Opposition in the Lok Sabha.
- They are not eligible for re-nomination.
- In 2015, the Supreme Court declared both the 99th Constitutional Amendment of 2014 and the NJAC Act of 2014 as unconstitutional and void.
Issues with NJAC
- Two eminent persons on the NJAC didn’t require expertise in law, potentially allowing arbitrary appointments.
- Ambiguities existed in the Acts, such as the criteria for the fitness of the senior-most Judge of the Supreme Court for the role of Chief Justice of India.
- The veto power of any two NJAC members could override judicial opinions.
- The CJI lacked a casting vote, which could have resolved deadlocks arising from an even number of members.
- Conflict could arise if the Chief Justice and two senior-most judges of High Courts nominated different individuals to the NJAC for High Court Judge appointments.
- The NJAC had the authority to create regulations regarding suitability and appointment procedures for judges, with Parliament having the power to nullify these regulations, potentially giving the Legislature authority over the Judiciary.
Comparing International Judicial Appointment Systems
- In the UK, there exists a Judicial Appointments Commission (JAC) comprising 15 members. This commission is responsible for shortlisting individuals to fill judicial positions in various courts and tribunals.
- In the USA, the President holds the authority to nominate judges for federal positions. These nominations are presented to the Senate for approval.
- The Senate, specifically its Judiciary Committee, conducts confirmation hearings for each prospective nominee.
- The American Bar Association plays a crucial role by systematically assessing the qualifications of judicial nominees and providing its evaluation to the Senate Judiciary Committee.
- Russia employs a collegium system for the selection, appointment, and promotion of judges. This system also handles matters related to judges’ discipline.
- The Collegium of Judges in Russia is formed through an election process. Representatives from the judicial community elect judges to be part of this collegium.
- Notably, the Russian President has the authority to reject a recommended candidate for a judgeship, and this rejection can be made without providing any specific reasons.
- In France, the executive branch (the government) plays a significant role in the appointment of judges.
- ‘The High Council of the Judiciary,’ a body consisting of 20 members primarily from the judiciary, is appointed by the head of state, who is the President. This council sends recommendations to the President regarding judicial appointments.
What is the Way Forward?
- 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.
- Prioritize prompt and efficient appointments to avoid delays and unnecessary conflicts.
- Collaborate between the government and the 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.
- 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.
- 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.
- Establish a well-resourced, independent secretariat for judicial appointments.
Practice Question
Analyse the criticisms surrounding the Collegium system, which is criticized for its lack of transparency in the selection and appointment of judges. Discuss the ongoing demands for reforms aimed at creating a more transparent, accountable, and inclusive judicial appointment process. (Answer in 250 words)