Context

• Recently, there has been confrontation between the Centre and judiciary on the interpretation of Article 124 (2) and 217 (1) of the Constitution.

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Provisions related to the appointment of judges to the supreme court and high court

• Article 124 (2): It highlights that every judge of the Supreme Court will be appointed by the president after consultation with such of the judges (in particular, the chief justice) of the Supreme Court and of the high courts in the states as necessary.
• Article 217 (1): Similarly, for high courts, Article 217 (1) highlights that every judge of a high court will be appointed by the president after consultation with the Chief Justice of India, the governor of the state, and the chief justice of the high court.
• Judicial independence and Collegium system: Judicial interpretation in SP Gupta vs Union of India (1981), The Supreme Court Advocates-on Record Association vs Union of India (Second Judges case) (1993) and Article 143(1) vs Unknown (Third Judges Opinion) (1998) has further evolved the principle of judicial independence and led to a collegium system for recommending judges.
• Role of central government: Currently, the Centre can accept or reject recommendations made by the collegium system however, if a recommendation was reiterated, the government was obliged to accept it.

What the ongoing tussle is all about?

• More recently established consensus has given way to a stalemate, as the Centre stalls recommendations reiterated by the Collegium.
• The Supreme Court pulled up the government for not following timelines laid down in the Second Judges Case.
• The Standing Parliamentary Committee on Law and Personnel has also highlighted its disagreement with the Department of Justice that the time for filling vacancies cannot be indicated.

What will be the impact of this tussle?

• Decline in the capacity of India’s judicial system: The net effect of this historic tussle between the independent judiciary and overweening Centre has been a decline in the capacity of India’s judicial system
• Vacancies in higher judiciary: There were approximately three vacancies (of 34) in the Supreme Court, along with about 381 (of 1,108) vacancies for judges in the high courts.
• In lower judiciary: The lower judiciary had about 5,342 (of 24,631) seats vacant, accounting for 20 per cent of its capacity.
• Impact on judicial efficiency: Such vacancies, particularly in the high courts of Bombay, Punjab & Haryana, Calcutta, Patna and Rajasthan are bound to have an impact on judicial efficiency (with about four crore cases pending, as of August 2022)

A study: Process of appointment of judges in other countries and by political institutions

• In Italy: Here, appointments to the Constitutional Court are made by the president, the legislature and the Supreme Court, with each entity allowed to nominate five judges.
• In US: Supreme Court justices are nominated (for life) by the president and then approved by Senate via a majority vote. Whereas, the state governor appoints state judges based on recommendations provided by a merit commission.
• In Germany: The German Constitutional Court is appointed by the Parliament (each House gets four appointments in each of the Court Senates) with a supermajority vote (2/3). Naturally, this can lead to a partisan judiciary.
• In Iraq: All judges are graduates of a Judicial Institute, with all applicants undergoing written and oral tests, along with an interview with a panel of judges.
• In Japan: The Supreme Court Secretariat controls lower-level judicial appointments, along with their training and promotions.
• Judicial elections to enhance the accountability of judiciary: Judicial elections have also been utilised to enhance the accountability of the judiciary a variety of states in the US using elections for judicial appointments to the State Supreme Courts.
• Judicial councils: Other countries have experimented with judicial councils (often comprising of existing judges, representatives of the Ministry of Justice, members of the bar association, laymen etc)

Appointments through Judicial Commission

• Centres push Judicial Commission: for Recently, the Centre pushed for judicial appointments to be conducted via a Judicial Commission (National Judicial Appointments Commission Bill, 2014).
• Supreme court says collegium system open to greater transparency: The Supreme Court struck down the NJAC Act (2014) with a 4:1 majority, while highlighting that it was open to greater transparency in the collegium system in particular, making the collegium more transparent, fixing eligibility criteria for appointing judges and debating whether an empowered secretariat was required to appoint judges.

In this scenario what are suggested reforms?

• Empower secretariat to select and recommend candidates: The Collegium system can continue; however, a secretariat may be empowered to select and recommend candidates, with the Executive continuing to hold power to appoint judges.
• Greater representation of our society in the judiciary: The secretariat could be staffed with current judges, members of the bar association, representatives of the law ministry and laymen and should push for greater representation of our society in the judiciary. There were only three women and two SC judges in the Supreme Court.
• New Court of appeal: Beyond judicial appointments, there is a clear need for having a new Court of Appeal (refer PIL by V Vasanthakumar). The Supreme Court was never intended to be a regular court of appeal against orders in high courts (Bihar Legal Society vs Chief Justice of India, 1986) the Supreme Court should not be hearing bail applications.
• Federal court of Appeal: Instead, as recommended by the Law Commission, we need to have a Federal Court of Appeal, with branches in major metros.
• Transform Supreme court into constitutional court: The Supreme Court should be transformed into a Constitutional Court (via a constitutional amendment) doing this would mean fewer cases (about 50, anecdotally) being kept pending at the highest level.
• Defined retirement age for all judges: There need a push for a defined retirement age, say 65, for all judges, whether at a high court or Supreme Court level post retirement, there should also be a mandatory cooling off period for judges to be nominated to roles in government.

Conclusion

• Judicial independence continues to be important for the health of India’s democracy. A credible and impartial system of appointing judges is necessary to achieve judicial independence. Any appointment must ensure judicial accountability, fostering a judiciary which, at an individual and systemic level, is independent from other branches of government.

Mains Question

Q. What is the process of appointment of Supreme Court and High Court Judges? What is the Government’s position on the appointment of judges? What measures are suggested for judicial appointments?

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