Appointment Process the CJI

Context

• The Ministry of Law and Justice has sought Chief Justice of India (CJI) U.U. Lalit’s recommendation for appointment of his successor.

About

• The Memorandum of Procedure (MoP): As per the MoP on appointment of Chief Justice of India and Supreme Court Judges, the Minister of Law and Justice seeks the recommendation of the outgoing CJI about the appointment of next CJI.
  • Memorandum of Procedure(MoP) is an agreement between the Judiciary and the government. It contains a set of guidelines for making appointments to the Supreme Court and High Court.
• The MoP has evolved as the standard based on three SC decisions – the First Judges Case (1981), Second Judges Case (1993) and the Third Judges Case (1998) form the basis of a peer selection process for appointment of judges.
• However, in 2016, the MoP was re-negotiated, following the Supreme Court’s decision to strike down the constitutional amendment that brought in the National Judicial Appointments Commission (NJAC).
• As per the Second Judges Case(1993) and MoP, the senior most judge of the SC should be appointed as the CJI.

Collegium System

• It is a novel mechanism devised for a democratic system of appointment and transfer of the judges of High Courts and the Supreme Court.
  • It evolved through Second and  Third Judges Case judgments.
  • The Constitution of India does not mention or define the collegium system nor provides for its establishment.
• The SC Collegium is headed by the CJI and includes 4 other senior-most judges of the Supreme Court.
• The HC Collegium is led by its respective Chief Justice and four other senior-most judges of that court.

Constitutional Provisions

• Article 124(2): The Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
• Article 217: The Judge of a High Court shall be appointed by the President in consultation with the CJI and the State Governor, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Recent Recommendations of Collegium

• For the first time in a single resolution, the Collegium had recommended three women judges thereby sending a strong signal in favor of women representation in the higher judiciary.
• It continued the trend of recommending direct appointments from the Supreme Court Bar to the Bench of the court.
• It has also recommended six judicial officers and a judicial member of the Income Tax Appellate Tribunal for appointment as judges of the Telangana High Court.

National Judicial Appointments Commission (NJAC) 

• Establishment: NJAC was established by the government to replace the Collegium System of appointments as per the Constitution (Ninety-ninth Amendment) Act, 2014
• Aim: Its aim was to promote transparency in judicial appointments and bring parity of say between judicial and executive members.
• Membership: CJI, two senior-most judges, the Law Minister and an eminent person from the public to be chosen by the President in consultation with the CJI.
• In a 2015 verdict, the Supreme Court declared both the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 as unconstitutional as it would undermine the independence of the judiciary.

Way Forward

• To fill vacancies in a timely manner, the government and the Collegium needs to prepare a fixed time frame for the process of appointment of the CJI and the judges to the higher judiciary.
• There should be an institutional mechanism for consideration of names from the Supreme Court Bar in place of a present ad hoc mechanism.

Source: TH