Judicial appointments in India has always been a contentious issue in India. It is further highlighted by the recently released report of the Department of Justice, while 60 lakh cases remained pending at various High Courts, 30% of the HC judge seats remain vacant. There has been a long drawn confrontational battle between the Government and the Judiciary over the procedural powers of appointment of Judges in India.
In this article we will look at the historical battle between Judiciary and Executive regarding Judicial appointments, the current system of Judicial appointment, the concerns around it. We will also focus on the proposed National Judicial Appointments Commission (NJAC) which sought to replace the collegium system and the methods of judicial appointments in other countries.
What are the constitutional provisions regarding Judicial appointments in India? What has been the history of evolution of the present system of appointment in India?
| Constitutional Provisions of Judicial Appointment | |
| Article 124 (2) | Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for that purpose. In the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. |
| Article 217 | Every Judge of a High Court shall be appointed by the President by a warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, the Chief Justice of the High Court except in case of his/her own appointment. |
Historical Battle between Executive and Judiciary over appointments
| Colonial Rule | During the Colonial rule, the Judicial appointments were dominated by the executive branch. |
| Consitutional Debates | The framers of the Indian Constitution, were concerned about the potential for executive overreach in the appointments. They sought to create a balanced system of Judicial appointment to ensure judicial independence. Art 124(2) and Art 217 were aimed at balancing the powers of executive and judiciary in safeguarding judicial appointments. |
| Judicial Interventions | A series of rulings by the Supreme Court of India in the First, Second, and Third Judges case, led to the establishment of collegium system in India. The Judiciary gained a significant role in appointing judges, thereby reducing the executive’s influence. |
First, Second and Third Judges Case
| First Judges Case (1981) | SC in the First Judges case ruled that consultation under Art 124 does not mean concurrence. The president in not bound by the CJI’s advice. |
| Second Judges Case (1993) | SC overruled its previous decision in the First Judges case and asserted that ‘consultation‘ meant ‘concurrence‘. The CJI is required to formulate its advice based on a collegium of judges consisting of CJI and two senior most SC- judges. |
| Third Judges Case (1998) | SC expanded the collegium to a five member body to include the CJI and the four senior most judges of the court after the CJI. This further entrenched judicial control over appointments. |
NJAC Act and the Judicial Respose
| 99th Constitutional Amendment Act 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 | The NJAC was proposed to be an independent Commission to replace the Collegium System to appoint Judges to the higher Judiciary. Membersip- It was to be a six member body consisting of (a) The Chief Justice of India as the ex-officio Chairperson (b) Two senior-most Supreme Court Judges as ex-officio members (c) The Union Minister of Law and Justice as ex-officio member (d) Two eminent persons from civil society. (The eminent persons were to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of Opposition in the Lok Sabha. One of the eminent persons was to be nominated from SC/ST/OBC/minorities or women) Veto Power- The Act empowered any 2 members of the NJAC to veto a recommendation if they did not agree with it. |
| Fourth Judges Case (2015) | The Supreme Court declared the 99th Amendment Act and the NJAC Act as unconstitutional. Supreme Court struck down the National Judicial Appointments Commission (NJAC) and reaffirmed the collegium system. SC held that NJAC impinged on the independence of the Judiciary and undermined the basic structure of the Constitution. |
Issues with NJAC
1. Membership Issue- The two eminent persons to be part of the NJAC need not have any expertise in Law or related to the functioning of the Courts. This would have created an avenue for the Government to appoint any person to the Commission.
2. Ambuiguity in Definitions- Certain terms were left unexplained and ambiguous in the Acts. For ex- Section 5(1) of the NJAC Act required the NJAC to recommend the senior-most Judge of the Supreme Court as the Chief Justice of India “if he is considered fit to hold the Office”. However the criteria for fitness has not been defined.
3. Veto Power- The use of veto power by any two members could have resulted in overriding of the Judicial opinion.
4. Absence of provision of Casting Vote- The CJI had no Casting Vote. The NJAC had an even number of 6 members but the Chairperson, the Chief Justice of India, had no casting vote. A casting vote could have been useful in avoiding a deadlock (due to split in the even number of votes).
5. Possibility of executive Over reach- The NJAC had the power to frame regulations laying down the criteria of suitability, and the procedure of appointing judges of the SC and the HCs. The Parliament had the power to nullify these regulations, thus giving over-riding powers to the Legislature over Judiciary.
What is the present System of Judicial Appointment in India?
Through the judgments in the four judges case, the SC has firm control over the Judicial appointments in India.
Collegium-led Appointment- The Judicial Appointments and transfers (Higher Judiciary, Supreme Court and the High Courts) are undertaken through the ‘Collegium System’.
| The Collegium of the Supreme Court is a 5-Judge body, headed by the Chief Justice of India. It includes 4 senior-most Judges of the Supreme Court. The Collegium recommends the name of Judges to be appointed to the Court. |
Executive Background Checks- The Government also undertakes background checks of the candidates through its agencies like Intelligence Bureau (IB). The Government may raise objections to the choice and ask for clarification. The Government can return the recommendations of the Collegium for reconsideration.
However, if the recommendations are reiterated, the Government must accept them (SC Judgment).
What are the benefits of the Collegium System?
1. Checks Interference of the Executive- The collegium system isolates Judiciary from the influence of Executive and Legislature. It ensures independence of the Judiciary. For ex- The interference of the Executive in Judicial appointments during Emergency when several settled conventions were disrupted like appointment of senior-most Judge as the Chief Justice.
2. Executive as Main Litigant- The Government is the main litigant in Courts accounting for ~50% of the cases. Prominence to the Executive in appointments may impact impartiality of the Judiciary in adjudication.
3. Lack of Expertise- Executive may lack the expertise regarding requirements of a Judge. The Judiciary may be the best ‘judge’ in this regard.
4. Safeguarding the Constitution- Excessive Government control over Judiciary can make the Judges vulnerable to external influence. Judicial Independence is absolutely essential to safeguard the Constitution and underlying principles like Right to Life, Right to Privacy etc.
What are the concerns associated with the Collegium System?
1. Lack of constitutional Status- The Collegium is not prescribed in the Constitution. Article 124 mentions consultation, which the SC interpreted as ‘concurrence’ in Second Judges Case (1993). For Instance- During the hearing against the NJAC, the then SC Bar President had argued that the Constituent Assembly had considered a proposal for making Judges’ appointment ‘in concurrence’ with the CJI but had eventually rejected it.
2. Transparency issues- There is no official procedure for selection or any written manual for functioning of the Collegium. The parameters considered for selection (or rejection) are not available in the public domain.
3. Accountability issues- The selections of Judges by the Judges is considered undemocratic. Judges are not accountable to the people or any other organ of the State (Legislature or Executive). It can add an element of arbitrariness in functioning.
4. Allegations of Nepotism- Critics of the system argue that collegium system has led to ‘Uncle Judges’ wherein near relatives, kith and kin of sitting Judges are appointed to the higher judiciary leading to nepotism.
5. Subjectivity and bias in appointments- The absence of transparency, accountability and external checks creates space for subjectivity and individual bias in appointments. For ex- Ignoring the principle of seniority in some cases.
6. Lack of Global Equivalent- India is perhaps the only country where Judges appoint other Judges without involvement of any other organ of the State.
What are the Global best practices of appointment of Judges?
In most of the countries, the judicial appointments are made by a committee established by the administrative and legislative branches of government.
| UK | Constitutional Reform Act, 2005, introduced by the U.K., established two Commissions for the purpose of choosing judicial service candidates. These commissions have representation both from the judiciary as well as the executive. |
| South Africa | South Africa has a Judicial Service Commission (JSC) that advises the President to appoint judges. This service commission has representation from diverse branches of the government. |
| France | Judges are chosen through a process involving the High Council of the Judiciary (Conseil Supérieur de la Magistrature) or, in the case of lower courts, by the Minister of Justice who may consult or receive advice from the High Council. |
What should be the Way Forward?
1. Revival of NJAC by getting rid of its criticism- The NJAC can be reworked by taking into account the views of the judiciary, the executive, and civil society, as in case with other countries. However, the infirmities in the act like Veto power, lack of decisive vote with the CJI and lack of defined membership criteria must be removed.
2. Finalization MoP- The Government and Judiciary should cooperate to finalize the Memorandum of Procedure (MoP) regarding judicial appointments. The MoP should have clear guidelines like transparency, eligibility criteria, mechanism for complaints against candidates etc.
3. Bring Transparency- The Judiciary should bring more transparency in the process of appointments. Collegium must disclose the reasons for selection and rejection of a candidate. The law commission’s 230th Report (2012) recommendation– that that the Judges, whose kith and kin are practicing in a High Court, should not be appointed in the same High Court, must be implemented.
4. All India Judicial Services (AIJS)– Several experts have argued for establishment of All India Judicial Services (AIJS) to improve the quality of judges in the lower Judiciary. This should be consulted and implemented post consensus among all stakeholders.
5. Secretariat- Experts recommend that a well-resourced independent secretariat for judicial appointments should be established. There should be a comprehensive candidate database as well. It is necessary to be aware of vacancies in advance in order to facilitate quick judicial appointments.
Conclusion
In this context, the Government and the Judiciary must resolve the differences amicably and arrive at a system that is a best fit between the two: NJAC and the Collegium System.
The system of Judicial Appointments should be improved expeditiously. Judicial vacancy is one of the major reason for judicial pendency. All organs of the State should cooperate with each other with right citizen-centric spirit to ensure smooth functioning.
Till a new system is established, the Government should adhere to the recommendations of the Collegium and make the appointments in a prompt manner. Delay in appointments and needless friction should be avoided.
| Read More- The Hindu UPSC Syllabus- GS 2- Issues Related to Judiciary |
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