The Hindu Editorial Analysis- 9th February 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Context

The recent war of words between the higher judiciary and the political executive has revolved around the question of who has the power to appoint judges to the High Courts and the Supreme Court of India. Under the “collegium system” — itself the product of a 1993 judgment of the Supreme Court — the three senior-most judges of the Supreme Court make recommendations for appointments to High Courts; while the government may provide inputs, and ask for reconsideration, if a recommendation is reiterated, then formally, the government is bound to accept it.

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.

Constitutional Provisions for Appointment of Judges

• Judges of the Supreme Court and High Courts are appointed by the President under Articles 124(2) and 217 of the Constitution.
• Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Courts in the States as he may deem necessary.
• Article 217: “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.”

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 judgement 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.

Role of Government in Judicial Appointment

• The government’s role is limited.
• It can only get an inquiry conducted by the Home Ministry if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
• It can also raise objections and seek clarifications regarding the collegium’s choices.
  • But if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

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 Ahead

• Speedy appointment of judges:
  • By not appointing judges, the government is depriving common persons of justice. Justice delayed is justice denied. 
  • There is an urgent need to improve the judge-to-population ratio to reduce the workload of judges. 
• Guidelines by Union government:
  • Centre had suggested measures like increasing the number of working days of courts, establishment of fast track courts and Indian Courts and Tribunal Services (ICTs) to increase the productivity of the court system. 
• E-platforms:
  • Improve judicial infrastructure through the use of e-platforms and setting up of more courts.
  • India has launched the e-Courts National portal ecourts.gov.in of the eCourts Project.
• Strengthen the Alternative Dispute Resolution (ADR) mechanism:
  • It uses modes like Arbitration, Mediation and Conciliation.
  • It uses a neutral third party who helps the parties to communicate, discuss the differences and resolve the dispute.
  • It offers to resolve all types of matters related to civil disputes, as explicitly provided by the law.
• Counselling:
  • Disputes can be settled at the pre-litigation stage through counselling.