Judges’ Appointment in India: A Balancing Act Between Centre and Collegium

Context: 

• This article is based on an Editorial “Delay as tactic: On the Centre and Collegium relationship” which was published in the Hindu. Recently, the Central Government assured the Supreme Court about the appointment of Justice Siddharth Mridul of the Delhi High Court as Chief Justice (CJ) of the Manipur High Court.
• The delay in notifying the appointment of Justice Mridul was apparently due to the State government taking time to give its views on the proposal.

Timeline: Judges appointment in India

• 1950, After Constitution: President appoints judges after consultation
• 1981: First Judge Case, SP Gupta Vs. Union of India, the Supreme Court held that consultation does not mean concurrence and it only implies an exchange of views
• 1993: Second Judge Case, The Supreme Court Advocates-on-Record Association Vs Union of India
• 1998: Third Judge Case
• 2015: Formation of National Judicial Appointments Commission (NJAC) by 99th Constitutional Amendment Act
• 2015: Fourth Judge Case, Struck down NJAC

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What are the criticism of the collegium system in India?

• Unconstitutional and Autocratic: ‘Collegium’ is nowhere mentioned in the Constitution and has been evolved by the judiciary itself for retaining the power to select judges by itself.
• Undemocratic: Selection of judges are not elected by the people.
• Non-transparency and Opaque: As there is no official procedure for selection, lack of a written manual for functioning, selective publication of records of meetings and no eligibility criteria.
• Promotes Nepotism: Sons and nephews of previous members tend to be popular choices.
• Inefficient: Collegium has not been able to prevent the increasing cases of vacancies.
• Ignores SC’s own Guidelines: The recent supersession in appointment is inconsistent with the view of the Supreme Court in the Second Judges case, 1993, which deals with the Seniority law.
  • Unless there is any strong reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court.
• Against Established Conventions: The convention of ‘seniority’ has long been held as the procedure for appointments but ‘supersession’ ignores and abdicates this convention.
• No Reforms after the Fourth Judges Case: After striking down the NJAC, the court did nothing to amend, rather reverted to the old Collegium-based appointments mechanism.

The Path Ahead

• Transparency: The controversy over recommendations of the collegium highlights the need for collective leadership and transparent decision making in the Supreme Court.
• Appropriate Time Frame: 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.
• Specific Procedure & Institution for Consideration: There should be an institutional basis for considering names from the Supreme Court Bar, rather than considering them on an ad hoc basis.
• Specific Rule: It should be done as a rule and not as an exception.

Conclusion:

Establishing a transparent and time-bound procedure, along with institutional reforms, is crucial to address concerns surrounding judges’ appointments in India and enhance the efficiency of the process.