The impression that “judges appoint judges” in India is wrong. It is the government which “finally appoints the judges in the name of the President of India, the head of our state”, Chief Justice of India N.V. Ramana said in conversation with US Supreme Court judge.
GS II- Polity and Governance
Dimensions of the Article:
- What did the CJI say??
- What is the Collegium System?
- Evolution of the Collegium system
- Working of the Collegium System and NJAC
- Issues involved in appointment
What did the CJI say??
- There is an impression that in India judges appoint judges. It is a wrong impression.
- The appointment is made through the collegium system, which is a lengthy collaborative procedure. A large number of stakeholders are consulted.
What is the Collegium System?
- 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 Chief Justice of India and the four senior-most judges of the Supreme Court.’ There is no mention of the Collegium either in the original Constitution of India or in successive amendments.
- The recommendations of the Collegium are binding on the Central Government; if the Collegium sends the names of the judges/lawyers to the government for the second time.
Evolution of the Collegium system
- In the First Judges case (1982), the Court held that consultation does not mean concurrence and it only implies an 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.
Third Judges Case, 1998:
- 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 a plurality of 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 (CJI) without complying with the norms and requirements of the consultation process is not binding on the government.
- The Collegium system was born through the “Third Judges case” and it is in practice since 1998. It is used for appointments and transfers of judges in High courts and Supreme Courts.
- There is no mention of the Collegium either in the original Constitution of India or in successive amendments.
Working of the Collegium System and NJAC
- The collegium recommends 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 the 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”.
Issues involved in appointment
- Cumbersome Process: There are inordinate delays in the appointment of High Court judges and it leads to the pendency of cases.
- Lack of Transparency: There is no objective criteria for selection and people come to know about judges only after selection. It also promotes nepotism in the judiciary. The consultations of the Collegium are also not discussed in any public platform.
- Instances of Politicisation: In many cases, there is indication that due to the unfavorable judgments of certain judges the political executive hinders their appointments, elevation, or transfer. This reflects poorly on the concept of independence of the judiciary.
- Improper Representation: Certain sections of societies have higher representation whereas many vulnerable sections have nil representation.
-Source: The Hindu