APPOINTMENT OF JUDGES

17 November 2022 12:11

Articles Involved
1. Article 124: President appoint Supreme Court judges after consultation with such judges of High Courts and the Supreme Court
2. Article 217: appointment of High Court judges - the President should consult the CJI, Governor, and Chief Justice of the High Court concerned.

Judicial Evolution
1. Before 1973: senior most judge of the Supreme court became the CJI
2. 1st Judges case, 1982: Chief Justice's recommendation on judicial appointments and transfers can be refused for cogent reasons.
3. 2nd Judges Case, 1993: introduced the Collegium system, consultation with the CJl on appointment meant concurrence and binding
4. 3rd Judges Case, 1998: expanded the Collegium system to include the CJI and 4 other senior judges in the Supreme court and for High courts, the Chief
Justice and 4 senior judges of that High court
5. A.N. Ray, the fourth in line of seniority and who was part of the minority of Kesavananda Bharati Case, similar supersession followed when Justice H. R.
Khanna, after his lone but histor ic dissent upholding the fundamental right to life and personal liberty in the Habeas Corpus case, these incidents could be
directly linked to the Supreme Court evolving the Collegium system to protect judicial independence

Current System- Collegium System

1. Judicial Role: Collegium decides the names and forwards it to the government.
2. Executive Role: recommendations are received by the Law Minister, who forwards it to the Prime Minister to advise the President.

Arguments in Favour
1. Separation of Powers: maintain the independence of the judiciary
2. Avoid Politicisation: it keeps any political motive of the executive away. Ex: prevents the transfer of judges based on executive demands as in case of civil
servants
3. Domain Expertise: executive organ is not specialist
4. Secrecy: kept secret a secret for proper and effective functioning of the institution .
5. Consultative Process: recommendations after consulting within senior judges
6. Government is a major litigant: government is a major litigant, giving it an edge in appointments would amount to fixing the courts.

Arguments Against
1. Opaque process: does not provide any guidelines in selecting the candidates
2. Lack of checks and balances: gives the immense power to appoint Judges
3. Rise of Nepotism: Law Commission of India in 2009 report said that nepotism and personal patronage is prevalent.
4. No Transparency: According to former judge Chelameshwar, collegium system lacks "transparency, accountability and objectivity"
5. Judicial Burden: Appointment functions take a lot of time and thus affect the efficiency of case management in the courts.
6. Undemocratic: selecting judges without any public representation thus not democratic
7. Not Representative: a framework to ensure representation from women and other marginalised sections

Way Forward to Reforming the Appointments system

1. Open to RTI Petitions: so that any citizen get information about the process through which a judge was appointed
2. Minimum Eligibility: Minimum eligibility criteria for consideration need to be laid down
3. Recommendatory Body: be constituted to scrutinize the credentials of candidates and recommend names to the collegium
4. Codify decisions: A written manual should be released by the Supreme Court which should be followed
5. Reforming the NJAC: NJAC can be amended to reflect judicial concerns and further implemented
6. Carb Nepotism: Disclosure of relationships and affiliations of applicants to sitting
7. Ad Hoc Judges: appointment of ad hoc or additional judges to clear pending cases.
8. Executive-Judiciary Parity: India is the only country where Judicial appointments are insulated from executive oversight
9. Search cum selection committee: representatives from central(for SC) and state legislatures(HC).
10. Avoid executive tactis: like deliberative delaying, ignoring reitrated names, campaigning for delegitimising the collegium

National Judicial Appointments Commission (NJAC)

Erstwhile constitutional body established through 99th constitutional amendment act, which later declared null & void by the SC as it affected the independent
of judiciary which is one of the basic structures of the constitution.

Arguments in Favour of NJAC

1. Checks and balances: With Executive Veto in the committee, it checks any misuse of judicial power
2. Accountability: With a public elected representative, the system is more accountable to the public wishes.
3. Multi Stakeholder: The NJAC brings Jurist groups, the judiciary and the executive together.
4. Transparency: The appointment process would be more transparent and composite,
5. Veto Power: Members have veto power. If two members veto a nomination or decision, the matter is dropped

Why was it struck down by SC?

1. Culture of Reciprocity: Reciprocity favours between the government and the judiciary, and thus, destroys the latter.
2. Breaches Independence: presence of a law minister breaches the independence of the judiciary
3. Scope of Political Interest: Government is a major litigant, thus it would be easy to make political advantages
4. Compromises Separation of Powers: The NJAC would entail Executive activism in the domain of judicial expertise.