Reforming the process of judicial appointments

In April, with 60 lakh cases pending in various High Courts, and 30% of judicial seats remaining vacant, the issue of judicial appointments has come into sharp focus. Technically, with the high volume of pending cases, there should be a concerted effort to appoint more judges. However, despite this pressing need, judicial vacancies continue to persist, exacerbating the problem.

Evolution of Judicial Appointment Systems in India

• First Judges Case: In S.P. Gupta v. Union of India (1981), the Supreme Court ruled that the term “consultation” in judicial appointments refers only to “consultation of views” and not “concurrence of views.” Thus, the President is not bound by the judiciary’s recommendations and can act independently. This decision established “executive supremacy” in the appointment of judges, granting the central government the primary authority in these appointments.
• Second Judges Case:  The Second Judges case introduced the collegium system in 1993. It ruled that the CJI would have to consult a collegium of his two senior-most judges in the apex court on judicial appointments. The court held that such a “collective opinion” of the collegium would have primacy over the government. 
• Third Judges Case: In the Third Judges Case, the Court ruled that the Collegium System requires the consultation of a plurality of judges. It was determined that the Chief Justice of India should consult a collegium of the four senior-most judges of the Supreme Court. Since then, the Collegium System has been in place for appointments.

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Challenges with the Collegium System

• Lack of Transparency: Only the five members of the Collegium decide on judicial appointments, with no clear basis provided for their decisions, including reasons for rejecting other candidates.
• Lack of Accountability: Sometimes, appointed judges deliver vague statements and judgments, raising concerns about the accountability of the Collegium System for its choices.
• Nepotism: There is a high degree of nepotism, with only a small number of families repeatedly becoming judges. Individuals from lower backgrounds rarely make it to top courts. For instance, the current Chief Justice of India, D.Y. Chandrachud, comes from a family with a distinguished legal background. His father, Justice Y.V. Chandrachud, also served as Chief Justice of India.

Due to these challenges, the Collegium System has faced criticism.

The National Judicial Appointments Commission (NJAC)

• Establishment of the NJAC: In 2014, the NJAC was established by the Constitution (99th Amendment) Act, 2014, to reform the judicial appointment process. The NJAC was intended to replace the Collegium System for selecting Supreme Court and High Court judges.
• Composition of the NJAC: The NJAC was designed to include both judicial and executive members:
  • The Chief Justice of India
  • Two other senior judges of the Supreme Court
  • The Union Law Minister
  • Two eminent persons nominated by a committee consisting of the Prime Minister, the Chief Minister of India, and the Leader of the Opposition
• Supreme Court’s Verdict on NJAC: The Supreme Court struck down the NJAC Act as unconstitutional and void. The Court declared that the NJAC Act altered the basic features of the Constitution by impairing the independence of the judiciary and the separation of powers. It was argued that the NJAC conferred excessive powers on various authorities, potentially threatening judicial independence by allowing the executive to favour individuals based on favoritism. As a result, the NJAC was nullified, and the Collegium System was reinstated.  

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Lessons from Other Countries

• United Kingdom: The UK’s Constitutional Reform Act of 2005 established the Judicial Appointments Commission (JAC), a 15-member body designed to oversee the nomination of judges to the courts of England and Wales. The JAC’s diverse membership includes:
  • Chairman: Always a lay member
  • Judicial Members: Six, including two tribunal judges
  • Professional Members: Two, who must be barristers, solicitors, or fellows of the Chartered Institute of Legal Executives, with restrictions on holding the same qualification
  • Lay Members: Five
  • Non-Legally Qualified Judicial Member: One
    • This composition promotes transparency and accountability in the judicial appointment process by involving a wide range of stakeholders, including legal professionals and laypersons.
• South Africa: South Africa’s Judicial Service Commission(JSC) includes representatives from various sectors such as the judiciary, legal profession, and government. The JSC advises the President on judicial appointments, promoting a balanced and consultative approach.
• France: In France, the High Council of the Judiciary (Conseil Supérieur de la Magistrature) plays a key role in advising on judicial appointments. This system helps to insulate the appointment process from direct political influence while ensuring checks and balances.

Reworking the NJAC: The Way Ahead

Despite its rejection, the NJAC concept has merit and could be reworked to better address the concerns of all stakeholders.

• Balancing Efficiency and Independence: A revised NJAC should incorporate inputs from the judiciary, executive, and civil society to strike a balance between efficiency and independence. To safeguard judicial independence, the reformed commission must be structured to eliminate doubts about executive dominance while ensuring that appointments are efficient and merit-based. This approach could help minimise delays and enhance public trust in the judiciary.
• Addressing Current Challenges: Issues like nepotism, lack of transparency, and executive-judiciary conflicts have worsened, with the President’s final approval often causing further delays and exacerbating vacancies. A balanced and transparent NJAC could mitigate these challenges, ensuring the judiciary functions efficiently and independently.

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Conclusion

Reforming the judicial appointment process in India is crucial for improving the efficiency of the judiciary and restoring public confidence. While the Collegium system has protected judicial independence, its lack of transparency and accountability needs to be addressed. By drawing on international practices, India has the opportunity to craft a more balanced and effective system that maintains judicial integrity while addressing the pressing issues of delays and vacancies.

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