Appointment of Judges.

#GS-2 #POLITY # CHIEF JUSTICE OF INDIA

Process of appointing judges

  • The judges of the Supreme Court are appointed by the President.
  • The CJI is appointed by the President after consultation with such judges of the Supreme Court and high courts as he deems necessary.
  • The other judges are appointed by the President after consultation with the CJI and such other judges of the Supreme Court and the high courts as he deems necessary.
  • The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.
  • Appointment of Chief Justice From 1950 to 1973: The practice has been to appoint the senior most judge of the Supreme Court as the chief justice of India.
  • This established convention was violated in 1973 when A N Ray was appointed as the Chief Justice of India by superseding three senior judges. Again in 1977, M U Beg was appointed as the chief justice of India by superseding the then senior-most judge.
  • This discretion of the government was curtailed by the Supreme Court in the Second Judges Case (1993), in which the Supreme Court ruled that the senior most judge of the Supreme Court should alone be appointed to the office of the Chief Justice of India.

Importane of Collegium system 

  • The Collegium of judges does not mention in the Constitution. It is the Supreme Court‟s invention.
  • Constitution says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
  • Therefore, Collegium is a system under which judges are appointed by an institution comprising judges.
  • Collegium also recommends the transfer of Chief Justices and other judges.

Controversy over Consultation and Evolution of Collegium system:

  • The Supreme Court has given different interpretations of the word “consultation”in the above mentioned provisions. 
  • In the First Judges case (1982), the Court held that consultation does not mean concurrence and it only implies exchange of views. 
  • In the Second Judges case (1993), the Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence. 
  • In the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief Justice of India requires “consultation of plurality judges”. 
  • The sole opinion of the CJI does not constitute the consultation process. He should consult a collegium of four senior most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government. 

The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process are not binding on the government. 

Working of Collegium System and NJAC 

  • The collegium recommends of the names of lawyers or judges to the Central Government. Similarly, the Central Government also sends some of its proposed names to the Collegium. 
  • Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval. 
  • If the Collegium resends the same name again then the government has to give its assent to the names. But time limit is not fixed to reply. This is the reason that appointment of judges takes a long time. 
  • Through the 99th Constitutional Amendment Act, 2014 the National Judicial Commission Act (NJAC) was established to replace the collegium system for the appointment of judges. 
  • However, the Supreme Court upheld the collegium system and struck down the NJAC as unconstitutional on the grounds that the involvement of Political Executive in judicial appointment was against the “Principles of Basic Structure”. I.e. the “Independence of Judiciary”. 

Frequent criticism made against the Collegium system. 

  • Opaqueness and a lack of transparency.
  • Scope for nepotism.
  • Embroilment in public controversies.
  • Overlooks several talented junior judges and advocates.

Necessary reforms introduced.

  • A transparent and participatory procedure, preferably by an independent broad-based constitutional body guaranteeing judicial primacy but not judicial exclusivity.
  • It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
  • Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appointment in order of preference and other valid criteria.

NEWS SNIPPET 

Frame of reference.

  • The Supreme Court Collegium is striving to reach a consensus on recommendations to fill the five vacancies in the top court.
  • With barely a month left for Chief Justice of India to retire, the Collegium is discussing diverse opinions from within on issues like proportionate representation from various High Courts and seniority among High Court judges before finalising the names to recommend to the government for appointment.
  • Proportionate representation from High Courts and seniority, though only conventions and not constitutional or legal mandates, carry weight during the appointment process.

Judicial strength is decreacing 

  • The past several months have seen the Supreme Court function under a series of challenges posed by the COVID-19 pandemic, even as its judicial strength faded to 29 with the recent retirement of Justice Indu Malhotra.
  • The year 2021 will see four retirements in the top court, starting with Chief Justice Bobde, and Justices Ashok Bhushan, Rohinton Nariman and Naveen Sinha. The latter two judges retire in August.
  • The names of several High Court judges are in the zone of consideration.
  • Information published by the Law Ministry on March 1 shows that the senior-most among current Chief Justices of the 25 High Courts, as per their initial appointment in 2003 and 2004, are Karnataka Chief Justice, Tripura Chief Justice, Delhi Chief Justice, Allahabad Chief Justice, Gujarat Chief Justice h and Calcutta Chief Justice.
  • Of them, Allahabad Chief Justice and Calcutta Chief Justice will retire during the course of 2021.
  • Of the remaining, however, most Chief Justices belong to parent High Courts which already have multiple representations in the Supreme Court judiciary.

Lone representations 

  • There are in the Supreme Court, nevertheless, some State HCs which have lone representations.
  • In fact, the number of direct appointees from the Supreme Court Bar to the Bench exceeds representation from some State HCs.

 

FOR FURTHER INFO REFER TO THIS VIDEO ON Collegium system 

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