Ensuring Judicial Independence In Appointment of Judges in Higher Judiciary: SC | PWOnlyIAS 2023

Context:

• This article is based on a news “Judiciary is losing talent as government sits on names: Supreme Court” which was published in the Hindu. The Supreme Court expressed concern that the judiciary is experiencing an unprecedented loss of fresh talent due to prolonged delays in government decisions. 

Concerns regarding the appointment of Judges in higher Judiciary

• Favoritism in Appointments: The lawyers who left their law practices to become judges have been affected by the government’s favoritism in the selection process without clear reasons.
• Segregation of names: The government continues to segregate names with impunity despite the Collegium forbidding the practice.
  • There are 70 names recommended by High Court Collegiums for judgeships, and these names have been waiting for government approval for over 10 months.
  • The government has not responded to the Supreme Court (SC) Collegium’s recommendation for 26 transfers.

• Additionally, there are nine new recommendations for High Court appointments from the Collegium that the government hasn’t acted upon or returned. Pending Government Approval: Seven other names, which the Collegium has recommended again for High Court positions, are still awaiting government action, causing uncertainty.
• The Collegium’s recommendation to appoint the Chief Justice of the Delhi High Court as the Chief Justice of the Manipur High Court is still awaiting government approval.

Procedure of Appointment of Judges

• For Supreme Court Judges
  • Recommendations by collegium: All appointments must be recommended by the collegium.
  • Government approval: This recommendation is then sent to the Central government via the law minister and then the prime minister before ending up at the President’s desk  for approval and appointment.
• For High Court Judges
• Recommendations of Collegium: High Court collegium – the chief justice of the High Court along with its two senior-most judges – must send a recommendation to the chief minister and the governor of the state.
• Recommendations of state executive: The governor, based on the advice received from the chief minister, will send the recommendation to the Union Minister of Law and Justice, who after consideration will forward the recommendation to the CJI.
• Government’s approval:  The CJI, after being informed by the two senior-most judges of the Supreme Court, should send the recommendation to the Union Minister of Law and Justice.
  • He then puts the recommendations before the Prime Minister who will advise the President about the appointment.

What is the collegium system for the appointment of Judges?

• Appointment of judges in higher judiciary are being done through collegium system through which judges are appointed and transferred in the Supreme Court and high courts across the country.
  • The collegium system is a forum including the Chief Justice of India and four senior-most judges of the SC, which recommends appointments and transfers of judges.
• These appointments include the elevation of high court judges to the apex court and direct appointments of senior advocates as apex court judges.
  • 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.
• Significance: It provides a structured method for the appointment and transfer of judges in higher courts.
  • It seeks to preserve the independence of the judiciary from the executive branch by endowing judges with substantial influence in the appointment of judges.

Evolution of Collegium system for the Appointment of Judges

• The word Collegium is nowhere mentioned in the Constitution.
• It has evolved through the Supreme Court’s own three judgments, known collectively as the Three Judges Cases (1981, 1993, and 1998).
• Earlier, the appointment of judges was made by the President in consultation with the Chief Justice and other judges.
• First Judges Case (S.P. Gupta vs Union of India) 1982
  • The Executive has the ultimate and final say in the appointment of judges.
  • It emphasized that “consultation” of the Judiciary should not be seen as a “concurrence”.
  • The Supreme Court ruled that the President can turn down the recommendations of the CJI.
• Second Judges Case (Supreme Court Advocates-on-Record Association vs Union of India),1993
  • The primacy in the matter of appointment of judges to the higher judiciary was transferred from the executive to the Chief Justice of India
  •  CJI only needed to consult a collegium of two senior-most judges.
• Third Judges Case
  • The Supreme Court expanded the strength of the collegium which included the CJI and four senior most Supreme Court judges in case of a Supreme Court Judge appointment.
  • In case of a appointment of judges in High court, it included a High Court Justice and two senior most Supreme Court judges.
• Fourth Judges Case (Supreme Court Advocates on Record Association And Anr. v. Union of India) 2016

• The Supreme Court held the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 unconstitutional and void.
• Citing the independence of the judiciary, and veto powers of these two eminent powers, the act was held unconstitutional by the Supreme Court and it restored the collegium system for the appointment of judges in India.

Challenges with the Collegium system for the appointment of judges in higher judiciary:

• Lack of statutory timeframe limit: The SC in 2021 set a maximum of 18 weeks for the government to review the names submitted by the High Courts, after which they should be forwarded to the Supreme Court Collegium for final approval.
  • Since, the guideline is not mandatory, it is rarely followed.
• Opaque Functioning: The system of collegium for the appointment of judges operates largely behind closed doors, with limited public disclosure of the reasons behind the selection or rejection of candidates.
  • This lack of transparency has led to accusations of favoritism, nepotism and a lack of accountability.For instance: Justice Soumitra Sen was appointed to the Calcutta High Court.
• Lack of Merit-based selection: The collegium has not established clear criteria for appointing or elevating judges to constitutional courts, making these appointments appear arbitrary.
  • For Instance: Justice Akil Kureshi and Justice S Muralidhar  were not elevated to th SC.
• Overemphasis on seniority: The collegium system’s heavy reliance on seniority has been a subject of criticism.
  • It hinders the selection of younger, talented, and diverse candidates, limiting opportunities for fresh perspectives and innovation within the judiciary.
• Poor Social Representation: Despite existing for three decades, the system has failed to remedy the lack of social diversity in the higher judiciary.
  • Out of 537 appointments to high courts in the five-year period, 424 (79%) were from the general category (upper caste), 57 (11%) were from Other Backward Castes (OBCs), 15 (2.8%) were from Scheduled Castes (SCs) and 7 (1.3%) were from Scheduled Tribes (STs).
• No legal backing: Appointment of judges in higher judiciary through collegium system is not legally mandated but derives its existence from Supreme Court precedents, which diminishes its credibility in the eyes of the public.
• Failure to fill huge backlog: Huge pending cases per judge at the high court level of the failure of the collegium to fill up the vacancies over several years.
• Absence of institutional support for the collegium: It remains an ad hoc body with little constitutional or statutory backing.
  • There is no permanent secretariat and support staff dedicated to the task of helping the collegium with the complicated appointments procedure and ensuring timely meetings.
•  Huge attrition rate: Judges typically serve as collegium members for no more than two years at a stretch leading to the efficient operation of the collegium.

What alternative proposals has the government suggested for the appointment of judges?

• The government has suggested a three-step process of appointments based on justice Madan B. Lokur’s part of the 16 October ruling.
  • Appointment of judges by way of applications or nominations:  Apex court nominations should be made not just by the collegium, but also other judges of the court, the prime minister, president and the attorney general.
  • Committee of eminent citizens: A participatory appointment process is needed which must seek inputs from a committee of eminent citizens, which would not be restricted to the legal fraternity.
    • All shortlisted applications and nominations should be forwarded to this committee.
    • A member of this panel ought to be a part of the panel that will interview would-be judges in the last stage of the selection.
  • Submission of Written file to the executive: The entire file with all views recorded in writing must be sent to the executive for its views on the antecedents, character, integrity and relevant facets” to determine if the candidate was suitable for the post of a senior judge.

What are the way forward for the appointment of judges in the higher judiciary?

• Statutory backing to MOP: This will streamline the process and procedure of appointment of judges
• External oversight mechanism: It will provide checks and balances on the collegium system.

• It could involve the involvement of external stakeholders, such as members of the legal profession, civil society, or the executive branch, in the appointment process.
• The inclusion of diverse perspectives can enhance the accountability and democratic legitimacy of the system.

• Strengthening the role of the executive in the appointment of judges: This could involve a collaborative approach where the executive and judiciary work together to select and appoint judges, ensuring a balance of power and diverse inputs.
• Search and evaluation committee:  As recommended by the union law ministry, it should have representation from the central and the state governments in the selection of judges for the Supreme Court and the High Courts respectively.
• Reservation for  marginalized communities: Provision for reservation for marginalised communities to ensure social diversity.
• Establish a Comprehensive Regulatory Framework: It should clearly define the criteria, qualifications, and procedures for appointment of judges in higher judiciary.
  • It should incorporate provisions for transparency in decision-making, merit-based selection, and performance evaluations including the disclosure of reasons for appointments and transfers.
• Strengthen Public Participation: It can be achieved through public consultations, open hearings, or the establishment of a judicial appointments commission that includes representatives from civil society.
  • It will incorporate diverse perspectives and promote a more inclusive judiciary that reflects the aspirations and values of society.

Conclusion

To remain an Independent and fair judiciary, it is important to address all current challenges related to the appointment of judges in the higher judiciary in India. To avoid this conflict the Government and Courts should work together to safeguard the integrity and independence of the Indian judiciary, ultimately in delivering speedy justice that reflects the hopes and values of our society.

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