Delay in Judicial Appointments: SC to Centre

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The Supreme Court asked the government to clarify the status of 55 recommendations made by the Collegium for judicial appointments to various High Courts six months to nearly a year-and-a-half ago.

About

• Collegium made 44 recommendations out of 55 to fill vacancies in the Calcutta, Madhya Pradesh, Gauhati, Rajasthan and Punjab High Courts.
  • These recommendations have been pending with the government for over seven months to a year..

• The total sanctioned judicial strength in the 25 High Courts is 1,080. However, the present working strength is 661 with 419 vacancies as of March 1.
• Some of these High Courts were functioning only with half their sanctioned judicial strength.
  • On average, the courts suffered at least 40% judicial vacancies.

Collegium System

• It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
• The Supreme Court collegium is headed by the Chief Justice of India and comprises four other senior-most judges of the court.
•  A High Court collegium is led by its Chief Justice and four other senior-most judges of that court.
• Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
• Judges of the higher judiciary are appointed only through the collegium system, and the government has a role only after names have been decided by the collegium.

Evolution of the collegium system

• The collegium system has its genesis in a series of Supreme Court judgments called the ‘Judges Cases’.
  • FIRST JUDGES CASE:
    • In S P Gupta Vs Union of India, 1981, the Supreme Court judgment held that consultation does not mean concurrence and it only implies an exchange of views.
  • SECOND JUDGES CASE:
    • In The Supreme Court Advocates-on-Record Association Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
    • The majority verdict in the Second Judges Case accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments.
    • The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
  • THIRD JUDGES CASE:
    • 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 is not binding on the government.

Criticism of the collegium system

• Lack of Transparency and Accountability.
• Scope for nepotism.
• Embroilment in public controversies.
• Overlooks several talented junior judges and advocates.

Efforts have been made to address concerns

• The Government appointed Justice M N Venkatachaliah Commission which favoured the change and prescribed a National Judicial Appointments Commission (NJAC) consisting of the
  •  CJI and two senior-most judges
  •  The Law Minister
  • An eminent person from the public, to be chosen by the President in consultation with the CJI.
• In 2014 Government brought the 99th Constitutional Amendment Act, the National Judicial Commission Act (NJAC) to replace the collegium system for the appointment of judges.
• In 2015, a five-judge Constitution Bench declared them unconstitutional on the ground that they posed a threat to the independence of the judiciary.
  • • Bench declared that judges’ appointments shall continue to be made by the collegium system in which the CJI will have “the last word”.

Way Forward

• This is a time to revisit the Collegium issue, either through a Presidential reference to the Supreme Court, or a constitutional amendment with appropriate changes in the original NJAC law.
• The “thought process” of both the government and Collegium should be modulated and the time frame needed to be fixed for both the Collegium and Ministry to complete the appointment process.
• “There should be an institutional basis for considering names from the Supreme Court Bar, rather than considering them on an ad hoc basis.
  • It should be done as a rule and not as an exception.

Source :TH