Judicial Appointment

 
Facts:
  • HCs have 470/1091 seats of judges vacant
  • Delay in appointment is from Judiciary’s side (According to Government). The government has pointed to the case of the Allahabad High Court, which has the “oldest” judicial vacancies dating back to 2007. Despite this, the appointment process started only recently
 
What is collegium system?
The collegium system for judicial appointment, consisting of a closed group of four senior most supreme court judge and the CJI himself, evolved after three judge case in 90s. It evolved on fundamental of judicial independence but free judiciary from any political interventions.
 
What are negatives of collegium system?
  1. It completely circumvents other two pillar of democracy.
  2. Favoritism shown by certain judges.
  3. Completely opaque process of selection.
  4. Delayed procedure with most of young talents missing the boat.
  5. It goes against constitution which provided only consultation role to CJI while President appointing the judge.
 
What are positives of collegium system?
  1. Keeps away politicization of judiciary.
  2. Supreme court retains autonomy.
  3. Senior judges know better about the talents in judiciary than executive and legislative.
  4. With increasing awareness and modernization, corruption in judiciary system in form of either favoritism/morality or monetary can be curbed ex- recent case of sexual assault on a high court judge was well dealt.
 
What does the Constitution actually prescribe?
  • Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.
  • Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.
 
What has been done in this regard?
  • Government came up with NJAC bill which was rejected by SC as non-constitutional. Simultaneously, SC accepted that there are certain negatives in collegium system which needs to be fixed.
  • Negotiations has been going on between SC and government over building new framework for appointing judges
 
What is the current stage of negotiations?
  • Government wants merit to be the overriding criteria in appointment. Judiciary want that both merit and seniority should be balanced
  • The government wants a panel of retired judges to vet the applications of judicial candidates before they are forwarded to the collegium for its recommendations
  • Besides, the government wants the authority to reject a judicial candidate citing national security reasons despite the collegium’s recommendations
  • Finally, the government wants the Attorney-General of India and Advocates General of States to have a role in the appointment of Supreme Court and High Court judges, respectively
Why was NJAC struck down?
  • The composition of the NJAC, especially the inclusion in it of the Union Law Minister and two eminent persons was not widely appreciated. According to the court, the inclusion of the Law Minister in the body impinged on the doctrine of separation of powers.
  • The NJAC act gave any two members a veto over all decisions, raising the question whether the executive representatives could overrule the judicial members.
  • The court also felt that this new institutional mechanism to appoint judges impinged on the independence of the judiciary, a basic feature of the Constitution.
  • The clauses provided in the amendment were also inadequate to preserve the primacy of the judiciary.
  • And even the Attorney General, representing the government of India, could not convince the court that the amendment, along with the NJAC Act, was aimed at restoring the system of checks and balances which, according to the government, was lost after the Supreme Court created the collegium scheme of appointments.
 
 
Where is the negotiation stuck now?
  • In December 16, 2015 judgment, the SC had asked the government to frame a new memorandum of procedure for selection of judges.
  • Disagreement: The draft is stuck over a disagreement on the Centre’s insistence on including a “national security” clause to enable the government to reject a name recommended for appointment as judge of the SC or HCs on these grounds.
  • Tussle between Judiciary and Government:
    • The collegium has been firm that the Centre must put in writing its objections, including on national security grounds, for rejecting a recommendation and insists that if the collegium reiterates its recommendation the appointment must go through.
    • But the Centre remains firm it will only show intelligence inputs on a person to the collegium and not put it in writing as this could jeopardise the future of a person whose appointment was stalled because of national security apprehensions.
  • The collegium will soon give effect to the December 16, 2015 judgment of a five-judge bench mandating establishment of secretariats in the SC and each HC.
  • The secretariat will collate data on the track record of persons being considered for appointment as judges and place it before the collegium.
 
Related Questions:
  • Critically examine why the judicial appointments through the collegium system is despised by many in India. Do you see any merit in this? Comment. (200 Words)