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Daily Editorial – Judicial appointments Debate

editorials


  • Judicial appointments Debate

  1. Facts

  2. Collegium System

  3. Three judges Case

  4. Against The Collegium

  5. The logjam

  6. Way ahead


Click here to Download Daily Editorial (24 Nov 2016) 


 

Context – The government recently has cleared 34 while rejected 43 names for the judges post that were recommended by the collegium .

The government has cleared few names in accordance with the existing MoP, while refrained from considering the remaining ones on the ground that the MoP is not valid .


Facts

 


  • Supreme Court has a sanctioned strength of 31 , currently there are only 25 working while 6 vacancies are there.
  • In high courts sanctioned strength is 1041 , currently vacancies stand at 42.5% of the sanctioned strength at 442 .
  • For district and subordinate courts, there are vacancies stand at 23.2% e. 4,882 out of a sanctioned strength of 21,017 . While around 30 million cases await disposal .
  • judge-population ratio in India should be 50 judges per one million people according to Law Commision and parliamentary committees. The ratio continues to be 13 judges per one million people.

Collegium System


In a collegium system the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges. It is not mentioned in the indian constitution.

  • Over the course of the three cases, the court evolved the principle of judicial independence in the judicial appointments which meant decision of judiciary would be final in the appointments.
  • The court then created the collegium system, which has been in use since the judgment in the Second Judges Case .

Three judges Case 


S.P.Gupta Vs Union Of India 1981- This ruling gave the Executive primacy over the Judiciary in judicial appointments declaring that the “primacy” of the CJI’s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”

Supreme Court Advocates on Record Association versus Union of India 1993-  It declared that the CJI only need to consult two senior-most judges. Role of CJI is primary as it’s a matter within the judicial family the executive can not have equal say.   

Third Judges case 1998 It is not a case but an opinion by the Supreme Court of India in response to a question of law regarding the collegium system, raised by then President of India

  1. R. Narayanan under his constitutional powers.

Supreme Court laid down that the CJI should consult with a plurality of four senior-most Supreme Court judges to form his opinion on judicial appointments and transfers.

What constitution says – The constitution says that the president will appoint the judges of supreme court and high court after consultation such number of judges as he deems necessary , provided in the case of judges other than CJI  , CJI’s consultation is a must.


Against The Collegium 


  • The Central government has criticized the collegium system saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.
  • Collegium system is opaque , behind the door system.
  • Not a formal and transparent system. Discretion of the members of collegium is very high and any biases can not be ruled out.
  • This system overlooks several talented junior judges and advocates.

99th Constitutional Amendment Act – Established the NJAC .NJAC Act 2014

  • The NJAC Act was passed in Aug2014 to regulate the functioning of NJAC.
  • NJAC was about appointment of judges in the higher judiciary i.e. high court and supreme court.
  • NJAC Act had proposed the appointments to be done by a six-member body.
  • NJAC – To be headed by the Chief Justice of India had two senior most SC judges, the Union Law Minister and two “eminent” persons as its members .
  • These two eminent persons were to be selected by a panel including the Prime Minister, the CJI and the leader of the largest Opposition party in the Lok Sabha.

Against NJAC –

  • In October 2015 , the Supreme Court declared the NJAC amendment Act as unconstitutional and void , passing the judgement 4:1 with one judge in favour of NJAC.
  • The judges held that the appointment of judges, coupled with primacy of judiciary and the CJI, was part of the basic structure of the Constitution . The inclusion of Law minister and 2 eminent persons impinges upon the separation of power doctrine.
  • Judiciary thinks that NJAC will trample upon the primacy of the judiciary and the role of the CJI, he will be “reduced to an individual figure from an institutional head” in the panel
  • The constitution of NJAC is not a constitutional amendment act , that means it can be changed by another government. Only establishment of NJAC is a constitutional amendment.
  • Judiciary accepted that there were flaws in the collegium system and its needs improvement.

Dissent in Supreme Court –

  • Justice J Chelameswar, wrote a dissenting verdict, holding that ever-rising pendency of cases warranted a “comprehensive reform of the system”
  • He said that the proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks.

The logjam


  • Following the judgment Supreme Court called for suggestions to improve the collegium system .The court permitted the government to formulate MoP mentioning the points that needed to be addressed i.e. eligibility criteria, measures for transparency, establishment of a Secretariat, and a complaints mechanism.
  • The government submitted the MoP , but the court raised concerns over some issues primarily role of government in rejecting a name.
  • The government has not changed its stand on the proposed clause under which it will have powers to reject any candidate recommended by the collegium on grounds of public interest and national security . Though it has agreed to provide reasons of rejection.
  • Judiciary is now blaming the executive of stalling the appointments and starving it of manpower . Centre has clarified that it has no role to play in delaying the appointments and it is clearing the names of many judges to be appointed to high courts , transfers and four supreme court judges have been appointed.
  • The government has no choice but to recommend the person as judge if the collegium decides to send back the names not considered or rejected recently.

Way ahead


  • There are many issues grappling the judiciary like lack of staff , infrastructure , lower courts in india.
  • The age of retirement of a high court judge is 62 , while that of a supreme court judge is 65. Both can be increased to 68 as some judges are further appointed as heads or members of commissions and are good to work .
  • The government has recently mooted for the idea of an All India Judicial Services , it could be a good idea in line with the all india services already in india.
  • There is an urgent need to improve the removal procedure , no judge has ever been impeached in india as the process itself is very complicated . There are many cases when judges are found to be corrupt or incompetent , removal procedure needs change.
  • Lack of women judges in judiciary should be looked into.
  • There should be provisions for lateral entry for the best legal minds in country.
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  • Amit

    Nice read .. also there should be some framework for the identification of beat talent among the judgea.. performance measurement is very much necessary ..
    Apart from that the in the changing globalised scenario specail skills are needed fpr court for example cyber law, law related to patent and data exclusivity of pharma industry , genetic seeds .. judiciary should also plan to adopt those mesures. Which will help them in today’s evolving era.

  • thevagabond85 – KUNA3885

    Other judicial reforms required : National litigation policy
    Simplification of laws – tax, land, repeal archaic – sedition, 377 etc.
    Reducing arbitration cost
    E-courts

    “Democracy is a collective opinion. Nobody had primacy”

  • Captain America

    Nicely compiled.. Also issue like RTI in judiciary should have been included..