Judicial Appointments Conundrum Post-NJAC Verdict
High Court Judges’ Appointment under process: Centre
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium System
Why in the News?
The Union government has said that 219 proposals for the appointment of High Court judges by the Collegium are in various stages of processing.
What is Collegium System?
- The collegium system is the method used for the appointment and transfer of judges in the Supreme Court and High Courts of India.
- It is the Indian Supreme Court’s invention.
- The term ‘Collegium’ does not find mention in the Constitution.
- Constitutional Provisions:
-
- Article 124: The President appoints the Chief Justice and other judges of the Supreme Court after consultations with judges of the Supreme Court and High Courts as deemed necessary.
- Article 217: The President appoints High Court judges after consultations with the Chief Justice of India, the Governor of the state, and the Chief Justice of the High Court concerned
Composition:
- Supreme Court Collegium:
- A five-member body.
- Headed by the Chief Justice of India (CJI).
- Includes the four other senior most judges of the Supreme Court at that time.
- High Court Collegium:
- Led by the Chief Justice of the respective High Court.
- Includes the two senior most judges of that High Court.
- Recommendations for appointments by a High Court collegium are sent to the government only after approval by the CJI and the Supreme Court collegium.
Evolution: Three Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- The Supreme Court, in a majority decision, held that the opinion of the Chief Justice of India is not binding on the executive in the matter of appointments and transfers of judges. The court ruled that the executive has primacy in judicial appointments.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- The Supreme Court, by a majority of 7:2, overruled the First Judges Case and held that the CJI’s opinion regarding judicial appointments and transfers should be given primacy.
- The court established that the CJI should consult with the two senior-most judges of the Supreme Court before making recommendations for appointments and transfers, thereby creating a collegium system.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
The procedure followed by the Collegium:
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges:
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts:
- The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Qualifications for Appointment as a Supreme Court Judge:
According to Article 124(3) of the Constitution, a person can be appointed as a judge of the Supreme Court if he or she:
- Is a citizen of India.
- Has served as a judge of a High Court for at least five years or in two such courts in succession.
- Alternatively, has been an advocate of a High Court for at least ten years or in two or more such courts in succession.
- Is a distinguished jurist in the opinion of the President.
Qualifications for Appointment as a High Court Judge:
- The person must have held a judicial office for at least 10 years in India, or
- Must have been a practising advocate in a High Court for at least 10 years.
- The person must be enrolled under the Bar Council of India.
PYQ:[2012] What is the provision to safeguard the autonomy of the Supreme Court of India?
Which of the statements given above is/are correct? (a) 1 and 3 only (b) 3 and 4 only (c) 4 only (d) 1, 2, 3 and 4 |
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Judicial Appointments Conundrum Post-NJAC Verdict
Supreme Court cautions on ‘history sheets’: All you need to know about the practice
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Judiciary;
Mains level: Judicial interventions;
Why in the News?
On May 7, a Bench comprising Justices Surya Kant and K V Viswanathan warned against the presence of “unfair, prejudicial, and atrocious mindsets” that perpetuate and validate caste prejudices.
- It also directed all states and union territories to ensure that the ‘history sheets‘ maintained by their police forces are free from ‘caste biases’.
- The Bench was adjudicating a petition filed by AAP MLA Amanatullah Khan, contesting a history sheet initiated against him and a proposal to designate him as a ‘bad character’ by registering his name in the surveillance register at Delhi’s Jamia Nagar police station.
Did you know about the ‘History sheets’?
How was the process of ‘history sheeting’ initiated?
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About Amanatullah Khan’s plea in the Supreme Court:
- On May 13, 2022, the Station House Officer (SHO) of Jamia Nagar had submitted a dossier to the Assistant Commissioner of Police (ACP) and Deputy Commissioner of Police (DCP) proposing to open a history sheet and label him as a “Bad Character” in police records.
- The proposal was accompanied by a list of 18 pending cases against Khan, including offenses such as intimidation, threatening, and riots. Khan claimed that he had been discharged, acquitted, or had the FIRs quashed in 14 of these cases.
- Legal Battles:
- In January 2023, the Delhi HC dismissed Khan’s plea against the opening of the history sheet and the “Bad Character” tag, stating that the Delhi Police had followed due procedure and complied with the Punjab Police Rules, 1934.
- Khan’s appeal to the SC was rejected, but the SC directed the police to ensure that details of his minor children and wife were not reflected in the history sheet.
- Khan’s plea focused on protecting the dignity, self-respect, and privacy of his innocent family members, including minor relatives, from being compromised by inclusion in the history sheet.
- Revisiting Police Procedures: The Delhi Police submitted that they would revisit the format for history sheets to ensure that the details of innocent family members are not compromised.
- A Standing Order issued by the Delhi Police Commissioner on March 21, 2024, stated that details of minor relatives should not be included in the history sheet.
BACK2BASICSConstitutional and Legal Provisions for accused person in India:
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Way Forward:
- Review and Revise Police Procedures: States and Union Territories should conduct a comprehensive review of their police procedures related to maintaining history sheets to ensure they are free from caste biases.
- Training and Sensitization: Police personnel should undergo regular training and sensitization programs to raise awareness about caste biases and the importance of impartiality in law enforcement.
Mains PYQ:
Q The jurisdiction of the Central Bureau of Investigation (CBI) regarding lodging an FIR and conducting probe within a particular State is being questioned by various States. However, the power of the States to withhold consent to the CBI is not absolute. Explain with special reference to the federal character of India.
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Judicial Appointments Conundrum Post-NJAC Verdict
SC declines plea against Collegium system to protect public’s best interest
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Registrar of supreme court
Mains level: Collegium system
Why in the news?
The petition, filed by advocate Mathews Nedumpara, seeks a revival of the NJAC. SC Registrar says the issue is already settled, and a repeat litigation is a “needless waste of judicial time and energy”
What is the Registrar of supreme court?
- The registrar is a chief executive officer of a judicial forum. They are in charge of the entire registry of the department.
What is NJAC (National Judicial Appointments Commission)?
- In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014, providing for the creation of an independent commission to appoint judges to the Supreme Court and high courts.
- In 2015, Supreme Court struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment
Actually, Collegium system is used for the appointment of SC Judges
First Judges Case (1981):
- Also known as S.P. Gupta case (December 30, 1981), the Supreme Court held that consultation does not mean concurrence and it only implies exchange of views
- It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
- The ruling gave the Executive primacy over the Judiciary in judicial appointments.
Second Judges Case (1993):
- SC reversed its earlier ruling and changed the meaning of the word consultation to concurrence.
- Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court.
- But, the Chief Justice would tender his advice on the matter after consulting two of his senior most colleagues (this was considered as Collegium)
- The collegium can veto the government if the names are sent back by the latter for reconsideration.
- The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.
- The opinions of each member of the Collegium and other judges consulted should be made in writing and form part of the file on the candidate sent to the government.
- Thus, the executive element in the appointment process was reduced to a minimum.
- If the CJI had consulted non-judges, he should make a memorandum containing the substance of consultation, which would also be part of the file. After the receipt of the Collegium recommendation, the Law Minister would forward it to the Prime Minister, who would advise the President in the matter of appointment.
Third Judges Case (1998):
- SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues while HC collegium is led by its Chief Justice and four other senior most judges of that court.
- Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
Conclusion:
The primary argument against the NJAC was that it could potentially undermine judicial independence by giving the executive a significant role in judicial appointments. Any alternative system, including a revised version of the NJAC, would need to ensure that judicial independence is safeguarded.
Mains PYQ
Q Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.
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Judicial Appointments Conundrum Post-NJAC Verdict
Why Parliament passed the Advocates Amendment Bill?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Legal Practitioners Act, 1879
Mains level: Not Much
Central Idea
- The primary aim of the recent legislative changes is to eliminate ‘touts’ from the legal system and streamline legal practice in India.
- The Legal Practitioners Act, 1879, a colonial-era law, and the Advocates Act, 1961, have been central to the regulation of legal practitioners in India.
- The Bill repeals the 1879 Act and amends the 1961 Act to reduce redundant laws and repeal obsolete ones.
The Legal Practitioners Act, 1879
- Inception and Scope: Enacted in 1880, it aimed to consolidate the law relating to legal practitioners in certain Indian provinces.
- Definition of Legal Practitioner: The Act defined legal practitioners as advocates, vakils, or attorneys of any High Court.
- Introduction of ‘Tout’: A significant aspect was the definition of ‘tout’, referring to individuals who procure clients for legal practitioners for remuneration.
The Advocates Act, 1961
- Consolidation of Legal Practice Laws: This Act was enacted to unify and amend laws relating to legal practitioners and establish Bar Councils and an All-India Bar.
- Pre-1961 Legal Framework: Previously, legal practitioners were governed by multiple acts, including the 1879 Act.
- Law Commission and All-India Bar Committee Recommendations: Post-independence, reforms were suggested by the Law Commission and the All-India Bar Committee, leading to the 1961 Act.
The Advocates Amendment Bill, 2023
- New Provisions: The Bill introduces a new section (Section 45A) in the 1961 Act, focusing on illegal practice and the regulation of touts.
- Punishment for Illegal Practice: It prescribes imprisonment for persons illegally practicing in courts and other authorities.
- Regulation of Touts: The Bill empowers High Courts and district judges to frame and publish lists of touts, ensuring due process before inclusion.
- Penalties for Touts: It includes provisions for punishing individuals acting as touts with imprisonment, fines, or both.
Rationale and Implications
- Streamlining Legal Enactments: The Bill aims to reduce superfluous laws and repeal those that have become obsolete.
- Government’s Policy on Obsolete Laws: In line with the government’s policy to repeal outdated pre-independence Acts, the Bill seeks to modernize legal practice regulations.
- Consultation with Bar Council of India: The amendments were made in consultation with the Bar Council of India, reflecting a collaborative approach to legal reform.
Conclusion
- Addressing Legal System Complexities: The Bill addresses long-standing issues in the legal system, particularly the exploitation of legal complexities by touts.
- Balancing Tradition and Modern Needs: By repealing outdated laws and amending existing ones, the Bill balances the need to respect legal traditions with the demands of contemporary legal practice.
- Future Outlook: These changes are expected to enhance the integrity and efficiency of legal practice in India, contributing to a more transparent and accessible legal system.
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Judicial Appointments Conundrum Post-NJAC Verdict
It’s time to revamp the structure of the Supreme Court
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Composition of Constitution Benches
Mains level: Suggestion to split the Supreme Court into a Final Court of Appeal and a permanent Constitution Bench
Central idea
The article discusses the challenges faced by the Supreme Court of India, the historical proposals for structural changes, and the recent proposal to create Constitution Benches as a permanent feature. It explores the need for regional benches to alleviate the overwhelming caseload and enhance the court’s efficiency, considering historical recommendations and current demands for reform.
Jurisdictions of the Supreme Court:
- Original, appellate, and advisory jurisdictions under the Constitution.
- Functions as a Constitutional Court and Court of Appeal.
Composition of Constitution Benches:
- Typically comprise five, seven, or nine judges.
- Deliberate on issues related to constitutional law.
- Article 145(3) mandates a minimum of five judges for substantial constitutional questions.
Broad Jurisdiction of the Supreme Court:
- Hears cases in Division Benches (two judges) or full Benches (three judges).
- Addresses diverse topics, from film prohibitions to allegations against public officials.
- Notable instances of entertaining frivolous public interest litigations.
Current Caseload and Need for Structural Change:
- 79,813 pending cases before 34 judges, prompting calls for structural reforms.
- CJI D.Y. Chandrachud’s recent announcement on establishing varied-strength Constitution Benches permanently.
Historical Proposals for Structural Change:
- Tenth Law Commission (1984) proposed splitting the Supreme Court into Constitutional and Legal Divisions.
- Eleventh Law Commission (1988) reiterated the need for division, aiming at wider justice availability.
- Bihar Legal Support Society v. Chief Justice of India (1986) expressed the “desirability” of a National Court of Appeal.
- 229th Law Commission Report (2009) recommended regional benches for non-constitutional issues.
Colonial Legacy and Evolution of the Supreme Court:
- Three Supreme Courts during colonial times (Bombay, Calcutta, Madras).
- Indian High Courts Act of 1861 replaced Supreme Courts with High Courts.
- Government of India Act, 1935, created the Federal Court of India.
- The Supreme Court, established on January 28, 1950, under Article 124 of the Constitution.
Increasing Judges and Overburdened Court:
- Evolution of the Supreme Court from eight judges in 1950 to 34 in 2019.
- Overburdened court issuing around 8-10 decisions yearly through Constitution Benches.
- Only four out of 1,263 decisions in 2022 from Constitution Benches.
Critical Analysis:
- Overburdened Judiciary: High number of pending cases (79,813) indicates the burden on the Supreme Court. The overwhelming workload affects the efficiency of the court in delivering timely justice.
- Historical Proposals: Historical proposals, like the Tenth Law Commission’s suggestion in 1984, proposed splitting the Supreme Court into Constitutional and Legal Divisions.The aim was to make justice more accessible and reduce litigants’ fees.
- Regional Benches Proposal: The 229th Law Commission Report (2009) recommended establishing regional benches to hear non-constitutional issues. The proposal aimed to decentralize workload and allow the Supreme Court to focus on constitutional matters.
- Historical Background: Evolution of the Supreme Court from colonial times with the creation of regional Supreme Courts. Transformation from three Supreme Courts (Bombay, Calcutta, Madras) to the current centralized structure.
Key Examples and References:
- Bihar Legal Support Society v. Chief Justice of India (1986) suggested establishing a National Court of Appeal.
- The 229th Law Commission Report (2009) recommended regional benches.
Key Facts:
- The Court sits in benches of varying sizes, as determined by the Registry on the directions of the Chief Justice of India (CJI), who is the Master of the Roster
- The Supreme Court was founded on January 28, 1950, under Article 124 of the Constitution.
- Workforce increased from 8 judges in 1950 to 34 judges in 2019 due to rising caseload.
Way Forward:
- Suggestion to split the Supreme Court into a Final Court of Appeal and a permanent Constitution Bench.
- A Constitution Bench (V. Vasanthkumar v. H.C. Bhatia) analyzing and proposing measures to protect citizens’ access to the Supreme Court.
- Opportunity to address structural gaps by designating appeal benches as regional benches under CJI’s guidance.
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Judicial Appointments Conundrum Post-NJAC Verdict
President bats for All India Judicial Service (AIJS)
Note4Students
From UPSC perspective, the following things are important :
Prelims level: All India Judicial Service (AIJS)
Mains level: Read the attached story
Central Idea
- On Constitution Day, President emphasized the need for an All-India Judicial Service (AIJS) to reflect India’s diverse fabric in the judiciary.
- Designed to streamline the recruitment process for judges, particularly at the levels of additional district judges and district judges across all states, the AIJS concept has been the subject of longstanding debate and contention within legal circles.
All India Judicial Service (AIJS): Overview
- Objective: To select and nurture talented individuals nationwide, ensuring representation from underrepresented social groups.
- Current Recruitment: Under Articles 233 and 234 of the Constitution, states manage district judge appointments. State Public Service Commissions conduct recruitment, supervised by High Courts.
- Rationale: AIJS aims to enhance judicial efficiency, standardize compensation, expedite recruitment, and ensure uniform training.
Historical Context
- 1958: The Law Commission first proposed a centralized judicial service.
- 1978: The Law Commission revisited the idea amid concerns about delays and case backlogs.
- 2006: A Parliamentary Committee supported a pan-Indian judicial service, drafting a bill.
Judiciary’s Stance
- 1992: The Supreme Court directed the Centre to establish AIJS (All India Judges’ Assam vs. Union of India case).
- 1993: The Court permitted the Centre to initiate AIJS independently.
- 2017: The Supreme Court suggested a “Central Selection Mechanism” for district judge appointments.
Necessity of AIJS
- Challenges: The lower judiciary faces about 5400 vacancies and a backlog of 2.78 crore cases.
- Quality Concerns: The declining quality of judicial officers necessitates high-caliber recruitment.
- Financial Incentives: State services often fail to attract top talent due to lower salaries.
- Training and Subjectivity: State-run institutions lack adequate training resources; current appointments are marred by subjectivity and nepotism.
Criticism and Concerns
- Federalism: AIJS is seen as infringing on states’ powers.
- Language and Representation: Centralized recruitment might impact the use of regional languages.
- Equality and Education: A national exam could disadvantage less privileged candidates; law education standards are inconsistent.
- Structural Issues: AIJS may not address systemic problems like low pay and inadequate infrastructure.
- Bureaucratization: Centralizing recruitment doesn’t inherently guarantee efficiency.
Government’s Motivation
- Business Environment: Reforming the lower judiciary is aligned with improving India’s Ease of Doing Business ranking.
- Dispute Resolution: Efficient dispute resolution is crucial for business rankings.
- IAS Inspiration: The government views the IAS system as a model for enhancing judicial services.
Way Forward
Niti Aayog’s ‘Strategy for New India @75’ report recommends:
- Examination: An all-India judicial services exam to maintain high standards.
- Technology: Implementing video-conferencing to expedite justice and reduce logistical issues.
- Independence: AIJS cadre should report to the Chief Justice in each High Court to preserve judicial independence.
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Judicial Appointments Conundrum Post-NJAC Verdict
SC Collegium proposes new CJs to 7 High Courts
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Not Much
Central Idea
- The Supreme Court Collegium, led by Chief Justice of India D. Y. Chandrachud, has recommended new Chief Justices for seven major High Courts in India.
- The recommendations focus on criteria such as seniority, regional representation, and gender diversity.
What is Collegium System?
- The Collegium of judges is the Indian Supreme Court’s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
Functions of the Collegium
(1) Appointment of CJI
- The President of India appoints the CJI and other Supreme Court judges.
- The outgoing CJI recommends his successor, and the appointment is typically made based on seniority, following the controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the Prime Minister, who then advises the President on the appointment.
(2) Appointment of Other SC Judges
- The proposal for appointing other judges to the Supreme Court is initiated by the CJI.
- The CJI consults other members of the Collegium, as well as the senior-most judge from the High Court to which the recommended person belongs.
- The opinions of the consultees must be recorded in writing and included in the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister for the President’s advice.
(3) Appointment of High Court Judges
- Chief Justices (CJs) of High Courts are appointed based on the policy of having Chief Justices from outside the respective states. The Collegium makes the final decision on their elevation.
- The appointment of High Court judges is recommended by a Collegium consisting of the CJI and two senior-most judges.
- The Chief Justice of the High Court concerned initiates the proposal in consultation with two senior-most colleagues.
- The recommendation is then sent to the Chief Minister, who advises the Governor to forward the proposal to the Union Law Minister.
(4) Transfer Recommendations by the Collegium
- The Collegium is also responsible for recommending transfers of Chief Justices and other judges.
- Article 222 of the Constitution allows for the transfer of judges from one High Court to another.
- When a Chief Justice is transferred, a replacement must be simultaneously appointed for the concerned High Court. An acting Chief Justice can be appointed for a maximum of one month.
- In transfer matters, the CJI’s opinion is determinative, and the consent of the judge being transferred is not required.
- However, the CJI should consider the views of the Chief Justice of the concerned High Court and one or more Supreme Court judges who are in a position to provide their opinions.
- All transfers must be made in the public interest, aiming for the betterment of the administration of justice.
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Judicial Appointments Conundrum Post-NJAC Verdict
Judicial Development: Concerns Over the Role of the CJI
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Role of CJI and related constitutional provisions
Mains level: Administrative powers of the CJI, challenges and concerns
Central Idea
- A recent judicial development has raised concerns about the authority and powers of the Chief Justice of India (CJI) in influencing judicial decisions. The recall application filed by the Union of India against a judgment regarding the right to default bail, followed by an interim order from the Court of the CJI, has highlighted the need to reassess the constitutional framework and the extent of the CJI’s administrative powers
An Extraordinary Decision and its Unusual Turn
- Safeguarding the Right to Default Bail: The Division Bench of the Supreme Court in Ritu Chhabria v. Union of India recognized the right of an undertrial to be released on default bail if the investigation exceeds the statutory time limit. It criticized the practice of charge-sheeting accused individuals despite incomplete investigations and emphasized that the filing of a preliminary charge-sheet does not extinguish the right to bail.
- Surprising Recall Application: The Court of the CJI entertained a recall application filed by the Union of India against the Ritu Chhabria judgment. This move deviated from the usual course of filing a review petition before the same Bench. The interim order passed by the Court of the CJI effectively stayed the Division Bench’s decision, even though it had no direct connection to the case.
Concerns over the Role of the CJI
- Intra-court Appeal without Legislative or Constitutional Backing: The recall application before a different Bench, including the CJI, raises concerns about the absence of a legislative or constitutional framework for such appeals. This practice can be seen as bench fishing or forum shopping, creating a mechanism devoid of legal legitimacy.
- The CJI’s Administrative Powers: While all Supreme Court judges possess equal judicial powers, the CJI enjoys special administrative powers as the ‘Master of the Roster.’ These powers include constituting Benches and assigning matters for reconsideration. However, within a Bench, the CJI’s vote holds no greater weight than that of other judges.
- Issues of Judicial Equality: While historically, the CJI has authored minority opinions, the recent interim order raises concerns about the extent of the CJI’s influence on judicial decisions. Other countries, such as the United Kingdom, Australia, and Canada, have systems where judges collectively exercise power, reflecting the collective strength of the Court.
Cause for Concern
- Instances of Abuse: Recorded instances of infirmities and irregularities in case assignments have raised concerns about the potential abuse of administrative powers by the CJI. The unending nature of these powers makes it impractical to establish limits, emphasizing the need for transparency and checks.
- The Need for Checks and Balance: To maintain the integrity of the judiciary, it is crucial to limit the expansion of the CJI’s powers as the ‘Master of the Roster.’ The computerization of case assignments and the removal of discretionary powers from the CJI can mitigate concerns of undue influence and ensure a fair and impartial judicial process.
Administrative Powers of the CJI
- Constitution of Benches: The CJI has the authority to constitute various Benches within the Supreme Court, including both Division Benches and larger Constitution Benches. This power allows the CJI to assign judges to specific cases and distribute the workload among the judges.
- Assignment of Matters: The CJI has the discretion to assign specific cases or references to different Benches for adjudication. This includes allocating matters to the appropriate Benches based on subject matter, complexity, and other relevant factors.
- Reconsideration of Matters: The CJI can refer cases or issues for reconsideration by a larger Bench. This power enables the CJI to ensure consistency in judicial pronouncements, resolve conflicting decisions, or clarify legal principles through the review of previous judgments.
- Administrative Decision-Making: The CJI is responsible for making administrative decisions related to the court’s functioning, including the allocation of courtrooms, assignment of court staff, and management of infrastructure and resources.
- Appointment of Judicial Officers: The CJI plays a significant role in the appointment and transfer of judges to various high courts and other tribunals. This responsibility includes participating in the collegium system, which involves recommending suitable candidates for judicial appointments.
- Judicial Administration: The CJI oversees the overall functioning of the judiciary, including setting standards for court procedures, case management, and promoting efficiency in the delivery of justice. The CJI works closely with other judges, court officials, and stakeholders to ensure the smooth operation of the judicial system
Facts for prelims
Key provisions related to the CJI’s administrative authority
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Conclusion
- While the administrative powers of the CJI are necessary for the efficient functioning of the Court, their exercise should adhere to constitutional principles and established legal procedures. It is imperative to establish transparent systems and minimize discretionary powers to safeguard the integrity and impartiality of the judiciary.
Also read:
| Back in news: Collegium System |
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Judicial Appointments Conundrum Post-NJAC Verdict
Back in news: Collegium System
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Judicial appointment opacity issue
The Centre has told the Supreme Court that it would soon clear five names that were recommended by the collegium for appointment of judges in the apex court.
What is Collegium System?
- The Collegium of judges is the Indian Supreme Court’s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
The procedure followed by the Collegium
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts
- The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Need for Collegium System
- Collegium system increases secrecy: Ruma Pal, a former Judge of the Supreme Court of India, stated that this system is one of the best kept secret in the country. It kept secret within the four walls of the body for proper and effective functioning of the institution that makes the system opaque.
- Political non-interference: The collegium system makes Judiciary independent from the politics. It separates the judiciary from the influence of executive and legislative. With the Govt’s influence judiciary can work without any fear and any sort of favour. This ensures the regulation of the doctrine of separation of power.
- Ensures merit: The executive organ is not specialist or does not have the knowledge regarding the requirements of the Judge as comparative to the CJI. Collegium system ensures that the deserving one is sitting in the position of the Judge in Supreme Court.
Loopholes in the Collegium system
- Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
A critical assessment
- No guidelines framework: This system does not provide any guidelines in selecting the candidates for the judge position of the Supreme Court because of which it leads to wide scope for the nepotism and favoritism.
- No checks and balances: This system gives the immense power to Judiciary to appoint Judges, so the check on the excessive powers would not be ensured and misuse of powers can be done.
- Judiciary is nowhere accountable: The collegium system is not accountable to any administrative body that may lead to wrong choice of the candidate while overlooking the right candidate.
- Huge workload leaves no room: Already there are many cases pending in the Court, they are having limited time the power given to them for the appointment would lead to burden to Judiciary.
| Former Chief Justice of Australia, Sir Harry Gibbs, are worth-quoting:
Judicial commissions, advisory Committees and procedures for consultation [with the Chief Justice] will be useless unless there exists, among the politicians of all parties, a realization that the interest of the community requires that neither political nor personal patronage nor a desire to placate any section of a society, should play any part in making judicial appointments. |
Some feasible measures that can be incorporated
- Ensure non-vetoing representatives: To ensure the effectiveness of this mechanism the commission should be representative in nature comprising members of the executive, legislature, judiciary, legal profession and lay persons.
- Info share in public domain: In addition, it should be ensured that the commission uses a system which is transparent and open to public scrutiny.
Way ahead
- In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.
Conclusion
- All mechanisms for judicial appointment may have some advantages and disadvantages and therefore, no particular system can be treated as the best system.
- Despite this, in order to maintain public confidence in the appointment system and to ensure judicial independence the commission system is perhaps a very effective mechanism for judicial appointment.
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Judicial Appointments Conundrum Post-NJAC Verdict
Who is a Puisne Judge, and what does the term mean?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Puisne Judges, Three Judges Case
Mains level: Not Much
While recommending two names for appointment as judges of the Supreme Court, the Collegium headed by Chief Justice of India D Y Chandrachud said that the collegium had taken into “consideration the seniority of Chief Justices and senior puisne Judges…”
Who are Puisne Judge?
- According to the dictionary, the word puisne has French origins, which means “later born” or younger.
- It is pronounced / “puny”, the English word that means small or undersized.
- Puisne is almost always used in the context of judges, and essentially denotes seniority of rank.
- The term puisne judge is used in common law countries to refer to judges who are ranked lower in seniority, i.e., any judge other than the Chief Justice of that court.
Now again, what is common law?
- Common law is the body of law that is created by judges through their written opinions, rather than through statutes or constitutions (statutory law).
- Common law, which is used interchangeably with ‘case law’, is based on judicial precedent.
- The United Kingdom (UK) and the Commonwealth countries, including India, are common law countries.
Legal reference to Puisne Judges
In the Third Judges Case ruling in 1998, one of the two cases that led to the evolution of the collegium system, the Supreme Court clarified that-
- The CJI must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four seniormost puisne Judges of the Supreme Court.
Is a “puisne judge” in India the same as in the UK?
- In the UK, puisne judges are judges other than those holding distinct titles.
- The Supreme Court of Judicature Act, 1877 defined a “puisne judge” as any judge of the High Court besides the Lord Chancellor, the Lord Chief Justice of England, and the Master of the Rolls.
- In India, all judges have the same judicial powers.
- As the seniormost judge of a court, the Chief Justice has an additional administrative role.
- In India, there is a reference to a puisne judge only while considering the order of seniority for appointments, elevations to High Courts, etc., but it does not have a bearing on the exercise of a judge’s judicial power.
What is the recent context?
- The Supreme Court collegium recommended current Chief Justices of the Allahabad and Gujarat High Courts respectively, for appointment as judges of the Supreme Court.
- While giving reasons for its recommendation, the collegium said that the decision was made taking “into consideration the seniority of Chief Justices and senior puisne Judges in their respective parent High Courts.
- This was done because seniority is one of the several criteria that are considered while making appointments to the higher judiciary.
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Judicial Appointments Conundrum Post-NJAC Verdict
Under Constitution, law declared by the Supreme Court is binding on all
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 141
Mains level: Doctrine of Precedence
Vice President Jagdeep Dhankhar questioned the landmark 1973 Kesavananda Bharati case verdict that gave the basic structure doctrine, saying it set a bad precedent and if any authority questions Parliament’s power to amend the Constitution, it would be difficult to say ‘we are a democratic nation’.
What did the SC say?
- Vice-President’s public criticism of the National Judicial Appointments Commission (NJAC) judgment may be seen as comments by a high constitutional authority against “the law of the land” (Art. 141).
- That is, as long as the NJAC judgment, which upholds the collegium system of judicial appointments, exists, the court is bound to comply with the verdict.
- The Parliament is free to bring a new law on judicial appointments, possibly through a constitutional amendment, but that too would be subject to judicial review.
What is Article 141?
- Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
- The law declared has to be construed as a principle of law that emanates from a judgment, or an interpretation of law or judgment by the Supreme Court, upon which, the case is decided.
- This article forms the basis of Doctrine of Precedent in India.
What has the VP accused the judiciary of?
- Dilution of Parliamentary Sovereignty: The Vice-President had remarked that judicial review, as was done in the case of the NJAC law, diluted parliamentary sovereignty. He had used terms like “one-upmanship”.
- Curb on Legislature: The Vice-President had said he did not “subscribe” to the landmark Kesavananda Bharati judgment of 1973 which limited the Parliament’s power under Article 368 to amend the Constitution.
- Disregard to the mandate of people: Dhankhar said no institution can wield power or authority to neutralise the mandate of people.
Notes for Aspirants
A classic observation in this regard was made by Chief Justice Patanjali Shastri in State of Madras versus V.G. Row (1952). Justice Shastri’s words were reproduced by Chief Justice J.S. Khehar in his lead opinion for the Constitution Bench in the NJAC case in October 2015.
(1) Actual nature of Judicial Review
- Justice Shastri said judicial review was undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid down upon them by the Constitution”.
- The Kesavananda Bharati verdict (1973) had made it clear that judicial review is not a means to usurp parliamentary sovereignty.
- It is a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.
(2) Limitations to Article 368
- Article 368 postulates only a ‘procedure’ for amendment of the Constitution.
- The same could not be treated as a ‘power’ vested in the Parliament to amend the Constitution so as to alter the ‘core’ of the Constitution, which has also been described as the ‘basic structure’ of the Constitution.
Back2Basics: Doctrine of Precedent
- Any judicial system’s structure places a high priority on the notion of precedent.
- It suggests that a judgement made by a court at the top of the judicial food chain binds courts below it.
- According to Article 141 of the Indian Constitution, all lower courts must abide by the Supreme Court’s interpretation of the law.
- Similar to this, a State’s High Court’s decision is binding on all Lower Courts within that state, and a division bench of a State High Court’s ruling is binding on the Justices sitting singly in that High court.
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Judicial Appointments Conundrum Post-NJAC Verdict
Supreme Court’s ‘Basic Structure’ verdict set bad precedent: VP
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Kesavanananda Bharati Case, NJAC
Mains level: Collegium system, NJAC
The Vice-President while addressing the 83rd Conference of Presiding Officers said that the Kesavananda Bharati case judgment of 1973 set a bad precedent by seeking to establish judicial supremacy.
Kesavananda Bharati Case (1973)
- The Kesavananda Bharati judgement, was a landmark decision of the Supreme Court that outlined the basic structure doctrine of the Indian Constitution.
- The case is also known as the Fundamental Rights Case.
- The SC in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution.
- The Court asserted through the Basic Structure doctrine that the constitution possesses a basic structure of constitutional principles and values.
- Key outcomes were:
- Judicial Review: The Court partially cemented the prior precedent Golaknath v. State of Punjab, which held that constitutional amendments through Article 368 were subject to fundamental rights review, but only if they could affect the ‘basic structure of the Constitution’.
- Exceptions to Judicial Review: At the same time, the Court also upheld the constitutionality of the first provision of Article 31-C, which implied that amendments seeking to implement the Directive Principles, which do not affect the ‘Basic Structure,’ shall not be subjected to judicial review.
Why are we discussing it now?
Ans. Centre vs. Judiciary Tussle
- The doctrine forms the basis of power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Parliament.
- Since few days, Judiciary and Executive are at loggerheads.
- In political sphere, there is a greater resentment against the SC verdict striking down the NJAC Act.
- Comments over appointment/transfer of judges in non-transparent manner has become a very common.
National Judicial Appointment Commission (NJAC)
|
Reasons behind VP’s harsh comments
Ans. Parliamentary Supremacy (Mandate of the People) overpowers Basic Structure
- VP said that in a democratic society, “the basic” of any “basic structure” has to be the supremacy of the mandate of the people.
- Thus the primacy and sovereignty of Parliament and legislature is inviolable.
- He said all constitutional institutions — judiciary, executive and legislature— are required to remain confined to their respective domains and conform to the highest standards of propriety and decorum.
- He said the power of Parliament to amend the Constitution and deal with legislation should not be subject to any other authority.
Conclusion
- After analyzing both NJAC and the collegium system, it can be inferred that neither of the methods is complete and both lack certain aspects.
- Many former judges and legal experts are supporting the NJAC.
- However, legal jurists are divided on NJAC, with some supporting it while others calling for amendments to the Act.
- It is quite evident that neither the collegium system nor the NJAC is accurate; both have some shortcomings.
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Judicial Appointments Conundrum Post-NJAC Verdict
Appointment of Judges: A case of confrontation between the Centre and judiciary
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Appointment of judges of SC and HC's
Mains level: Issues with the appointment of judges of SC and HC's and judicial reforms
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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Judicial Appointments Conundrum Post-NJAC Verdict
Why is Parliament silent on Voiding of NJAC: Vice-President
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Judicial appointment opacity issue
VP asked the two Houses for not taking cognizance, over the last seven years, of the 2015 Supreme Court judgment setting aside the Constitutional amendment to constitute the National Judicial Appointment Commission (NJAC).
Background
- Since few days, Judiciary and Executive are at loggerheads.
- VP pointed out that the amendment had been passed with unprecedented support by both Houses and approval from 16 State Assemblies.
- However, on October 16, 2015, the Supreme Court ruled that it was not in consonance with the basic structure of the Constitution, and scrapped the legislation.
What was NJAC?
- The NJAC was a body which was proposed to make appointments of Chief Justices, Supreme Court judges, and High Court judges in a more transparent manner as compared to the existing collegium system.
- It sought to replace the Collegium System.
- It was proposed via the National Judicial Appointments Commission Bill, 2014.
- The bill was passed by both the houses; Lok Sabha and Rajya Sabha, and also received the President’s assent.
- The commission was established by the 99th Constitutional Amendment Act, 2014.
- The Act proposed that the members of NJAC would be composed of members from the legislative, judicial, and civil society.
Composition of NJAC
- Chief Justice of India would be the Chairman of the NJAC
- Two senior-most judges of the Supreme Court
- The Law and Justice Minister
- Two eminent persons would be selected by a committee which would be composed of the Prime Minister, the Chief Justice of India and the Leader of Opposition
Why was the NJAC Act struck down?
- The five-judge SC bench struck down the NJAC Act along with the 99th Constitutional Amendment Act in a 4:1 ratio.
- It was repealed by a five-judge bench, famously known as the Fourth Judges Case, 2015.
- It was termed ‘unconstitutional’ and was struck down, citing it as having affected the independence of the judiciary.
Benefits of the NJAC Act
Justice Chelameshwar praised the NJAC Act because-
- Transparent process: It involved a smooth and transparent process for the appointment of judges.
- Brings checks and balances: the exclusion of checks and balances principle leads to the destruction of the basic structure of the Constitution.
- Seeks balance of power: In a democratic setup, the executive cannot be completely excluded.
- Global examples: In the dissent order, an example of the United States of America was given, where the head of the Executive is conferred with the power to appoint the judges.
Issues with collegium system
- Alleged favouritism: The collegium system does not provide any guidelines or criteria for the appointment of the Supreme Court judges and it increases the ambit of favouritism.
- Ambiguous process: The absence of an administrative body is also a reason for worry because it means that the members of the collegium system are not answerable for the selection of any of the judges.
- Isolating the executive: The check and balance principle is necessary because it ensures that no organ of democracy is exercising its power in an excessive manner.
- Extra-constitutional nature: The collegium system tells us that even though the collegium system is not mentioned anywhere in the Constitution, rather it has evolved over a period of time from different landmark cases.
- Lack of transparency: Nepotism has been often witnessed in the judiciary due to a lack of criteria for the appointment of judges.
What can we, as aspirants, observe here?
- After analyzing both NJAC and the collegium system, it can be inferred that neither of the methods is complete and both lack certain aspects.
- Many former judges and legal experts are supporting the NJAC.
- However, legal jurists are divided on NJAC, with some supporting it while others calling for amendments to the Act.
- It is quite evident that neither the collegium system nor the NJAC is accurate; both have some shortcomings.
Way forward
- NJAC needs to be amended to keep the judiciary independent.
- According to Justice Deepak Gupta, retired senior civil servants need to be inducted into the body appointing judges.
- The Supreme Court needs to lay down certain guidelines for appointing judges and those guidelines should be strictly followed and codified.
- Apart from that, all the notifications should be issued in the public domain to make the process more transparent.
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Judicial Appointments Conundrum Post-NJAC Verdict
We are the most transparent institution: Supreme Court
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system
Mains level: Issues with collegium system
The Supreme Court has said that it had become a “fashion” for its former judges to comment on earlier decisions of the Collegium when they were part of it while adding that the apex court was the “most transparent institution”.
What is Collegium System?
- The Collegium of judges is the Indian Supreme Court’s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
The procedure followed by the Collegium
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts
- The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Loopholes in the Collegium system
- Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
Way ahead
- In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.
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Judicial Appointments Conundrum Post-NJAC Verdict
Back in news: Supreme Court Collegium
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Read the attached story
The Supreme Court has lambasted the Centre for withholding names recommended or reiterated by the collegium for judicial appointments, even saying that the government is using silence and inaction as “some sort of a device” to force worthy candidates and prominent lawyers to withdraw their consent.
Why in news?
- The Union Law Minister since few months has launched a relentless attack on the collegium system for lack of transparency.
What exactly is the Collegium System?
- The collegium system was born out of years of friction between the judiciary and the executive.
- The hostility was further accentuated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of HC judges and two supersessions to the office of the CJI in the 1970s.
- The Three Judges cases saw the evolution of the collegium system.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
How does the collegium system work?
- The collegium of the CJI and four senior-most judges of the Supreme Court make recommendations for appointments to the apex court and High Courts.
- The collegium can veto the government if the names are sent back by the latter for reconsideration.
- The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.
The procedure followed by the Collegium
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts
- The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Loopholes in the Collegium system
- Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge. It has even been accused of nepotism.
Way ahead
- In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority of opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.
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Judicial Appointments Conundrum Post-NJAC Verdict
Justice DY Chandrachud nominated as next CJI
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Appointment of CJI
Mains level: Issue of Tenure of CJI
Chief Justice of India U.U. Lalit nominated Justice D.Y. Chandrachud as his successor. He will be 50th CJI.
How is CJI selected?
- Justice U.U. Lalit is the senior-most judge in the Supreme Court now.
- The ‘Memorandum of Procedure of Appointment of Supreme Court Judges’ says “appointment to the office of the CJI should be of the seniormost Judge of the SC considered fit to hold the office”.
- The process begins with the Union Law Minister seeking the recommendation of the outgoing CJI about the next appointment.
What is the time frame?
- The Minister has to seek the CJI’s recommendation at the “appropriate time”.
- The Memorandum does NOT elaborate or specify a timeline.
Making final appointment
The Memorandum says:
- Receipt of the recommendation of the CJI
- The Union Minister of Law, Justice and Company Affairs will put up the recommendation to the PM
- PM will advise the President in the matter of appointment
- The President of India appoints the CJI
Chief Justice of India: A brief background
- The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.
Appointment
- The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
- Earlier, it was a convention to appoint seniormost judges.
- However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
- Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.
Qualifications
The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:
- He/She is a citizen of India and
- has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
- has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
- is, in the opinion of the President, a distinguished jurist
Functions
- As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
- In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.
On the administrative side, the CJI carries out the following functions:
- maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court
Removal
- Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
- Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
- He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
- The voting has been presented to the President in the same session for such removal on the ground of proven misbehavior or incapacity.
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Judicial Appointments Conundrum Post-NJAC Verdict
Back in news: Supreme Court Collegium
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Read the attached story
The Supreme Court Collegium has issued an unprecedented statement acknowledging differences between Chief Justice of India and two senior judges over the procedure to select candidates for appointment as apex court judges.
What is the news?
- Two senior judges of the apex court objected to the CJI’s never-before act of circulating his written recommendations among the collegium members for their approval.
- The standard procedure instead is to have adopt across-the-table discussions.
What is the issue over this?
- CJI Lalit is slated to retire on 8
- As per the Supreme Court convention, the outgoing CJI does not hold collegium meetings when the appointment of his successor has already started.
What exactly is the Collegium System?
- The collegium system was born out of years of friction between the judiciary and the executive.
- The hostility was further accentuated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of HC judges and two supersessions to the office of the CJI in the 1970s.
- The Three Judges cases saw the evolution of the collegium system.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
How does the collegium system work?
- The collegium of the CJI and four senior-most judges of the Supreme Court make recommendations for appointments to the apex court and High Courts.
- The collegium can veto the government if the names are sent back by the latter for reconsideration.
- The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.
The procedure followed by the Collegium
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts
- The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Loopholes in the Collegium system
- Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge. It has even been accused of nepotism.
Way ahead
- In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority of opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.
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Judicial Appointments Conundrum Post-NJAC Verdict
Private: SC Collegium approves names for appointments in three High Courts
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Read the attached story
The Supreme Court Collegium led by Chief Justice of India (CJI) U.U. Lalit has recommended eight names for appointment to the Bombay High Court.
What is Collegium System?
- The Collegium of judges is the Indian Supreme Court’s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
The procedure followed by the Collegium
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts
- The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Loopholes in the Collegium system
- Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
Way ahead
- In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.
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Judicial Appointments Conundrum Post-NJAC Verdict
Justice Lalit appointed 49th CJI
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Appointment of CJI
Mains level: Not Much
Justice Uday Umesh Lalit was appointed the 49th Chief Justice of India (CJI) after President Droupadi Murmu signed his warrant of appointment.
How is CJI selected?
- Justice U.U. Lalit is the senior-most judge in the Supreme Court now.
- The ‘Memorandum of Procedure of Appointment of Supreme Court Judges’ says “appointment to the office of the CJI should be of the seniormost Judge of the SC considered fit to hold the office”.
- The process begins with the Union Law Minister seeking the recommendation of the outgoing CJI about the next appointment.
What is the time frame?
- The Minister has to seek the CJI’s recommendation at the “appropriate time”.
- The Memorandum does NOT elaborate or specify a timeline.
Making final appointment
The Memorandum says:
- Receipt of the recommendation of the CJI
- The Union Minister of Law, Justice and Company Affairs will put up the recommendation to the PM
- PM will advise the President in the matter of appointment
- President of India appoints the CJI
Chief Justice of India: A brief background
- The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.
Appointment
- The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
- Earlier, it was a convention to appoint seniormost judges.
- However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
- Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.
Qualifications
The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:
- He/She is a citizen of India and
- has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
- has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
- is, in the opinion of the President, a distinguished jurist
Functions
- As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
- In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.
On the administrative side, the CJI carries out the following functions:
- maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court
Removal
- Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
- Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
- He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
- The voting has been presented to the President in the same session for such removal on the ground of proven misbehavior or incapacity.
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Judicial Appointments Conundrum Post-NJAC Verdict
Working of the Supreme Court Collegium
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Collegium system, NJAC
Why in news?
- The Ramana Collegium has been particularly successful.
- Meeting frequently and working quickly, they took the perennial problem of judicial vacancies by its horns and turned it around.
Success of Ramana Collegium
- The collegium was able to recommend numerous judicial appointments and scripted history by getting nine Supreme Court judges appointed in one go.
- Of the nine, Justice B.V. Nagarathna, is in line to be the first woman CJI in 2027.
What exactly is the Collegium System?
- The collegium system was born out of years of friction between the judiciary and the executive.
- The hostility was further accentuated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of HC judges and two supersessions to the office of the CJI in the 1970s.
- The Three Judges cases saw the evolution of the collegium system.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
How does the collegium system work?
- The collegium of the CJI and four senior-most judges of the Supreme Court make recommendations for appointments to the apex court and High Courts.
- The collegium can veto the government if the names are sent back by the latter for reconsideration.
- The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.
The procedure followed by the Collegium
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts
- The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Loopholes in the Collegium system
- Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge. It has even been accused of nepotism.
Way ahead
- In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.
Back2Basics:
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Judicial Appointments Conundrum Post-NJAC Verdict
CJI’s recommendation on ‘Successor’ sought
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Appointment of CJI
Mains level: Read the attached story
Chief Justice of India N.V. Ramana has received a communication from the Union Law Minister seeking his recommendation on the appointment of the next top judge.
What is the news?
- Chief Justice Ramana is retiring this month.
- It is now left to CJI to give the Law Minister his recommendation on his successor.
How is CJI selected?
- Justice U.U. Lalit is the senior-most judge in the Supreme Court now.
- He is in line to be appointed the 49th CJI as per the seniority norm.
- The ‘Memorandum of Procedure of Appointment of Supreme Court Judges’ says “appointment to the office of the CJI should be of the seniormost Judge of the SC considered fit to hold the office”.
- The process begins with the Union Law Minister seeking the recommendation of the outgoing CJI about the next appointment.
What is the time frame?
- The Minister has to seek the CJI’s recommendation at the “appropriate time”.
- The Memorandum does NOT elaborate or specify a timeline.
Making final appointment
The Memorandum says:
- Receipt of the recommendation of the CJI
- The Union Minister of Law, Justice and Company Affairs will put up the recommendation to the PM
- PM will advise the President in the matter of appointment
- President of India appoints the CJI
Chief Justice of India: A brief background
- The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.
Appointment
- The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
- Earlier, it was a convention to appoint seniormost judges.
- However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
- Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.
Qualifications
The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:
- He/She is a citizen of India and
- has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
- has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
- is, in the opinion of the President, a distinguished jurist
Functions
- As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
- In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.
On the administrative side, the CJI carries out the following functions:
- maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court
Removal
- Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
- Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
- He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
- The voting has been presented to the President in the same session for such removal on the ground of proven misbehavior or incapacity.
Try this PYQ:
- Who/Which of the following is the custodian of the Constitution of India?
(a) The President of India
(b) The Prime Minister of India
(c) The Lok Sabha Secretariat
(d) The Supreme Court of India
Post your answers here.
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Judicial Appointments Conundrum Post-NJAC Verdict
What is Collegium System?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Read the attached story
What is Collegium System?
- The Collegium of judges is the Indian Supreme Court’s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
The procedure followed by the Collegium
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts
- The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Loopholes in the Collegium system
- Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
Way ahead
- In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority of opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.
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Judicial Appointments Conundrum Post-NJAC Verdict
Idea that judges appoint judges is wrong: CJI
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Collegium system
The impression that “judges appoint judges” in India is wrong. It is the government which “finally appoints the judges in the name of the President of India, the head of our state”, Chief Justice of India N.V. Ramana said in conversation with US Supreme Court judge.
What did the CJI say??
- There is an impression that in India judges appoint judges. It is a wrong impression.
- The appointment is done through a lengthy consultative process known as collegium system. Many stakeholders are consulted.
What is Collegium System?
- The Collegium of judges is the Indian Supreme Court’s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
The procedure followed by the Collegium
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts
- The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Loopholes in the Collegium system
- Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
Way ahead
- In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.
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Judicial Appointments Conundrum Post-NJAC Verdict
What is Collegium System?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Collegium system
The Supreme Court Collegium headed by Chief Justice N.V. Ramana has recommended to the Centre the names of six judicial officers for appointment as judges of the Delhi High Court.
What is Collegium System?
- The Collegium of judges is the Indian Supreme Court’s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
The procedure followed by the Collegium
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts
- The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Loopholes in the Collegium system
- Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
Way ahead
- In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.
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Judicial Appointments Conundrum Post-NJAC Verdict
All India Judicial Service (AIJS): The centralised recruitment debate
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Articles 233 and 234
Mains level: All India Judicial Services
The central government is preparing to give a fresh push to the establishment of an All India Judicial Service (AIJS) on the lines of the central civil services.
All India Judicial Service (AIJS)
- The AIJS is a reform push to centralize the recruitment of judges.
- It would work at the level of additional district judges and district judges for all states.
- In the same way that the UPSC conducts a central recruitment process and assigns successful candidates to cadres, judges of the lower judiciary are proposed to be recruited centrally and assigned to states.
- This idea has been debated in legal circles for decades, and remains contentious.
How are district judges currently recruited?
- Articles 233 and 234 of the Constitution of India deal with the appointment of district judges, and place it in the domain of the states.
- The selection process is conducted by the State Public Service Commissions and the concerned High Court since High Courts exercise jurisdiction over the subordinate judiciary in the state.
- Panels of High Court judges interview candidates after the exam and select them for an appointment.
- All judges of the lower judiciary up to the level of district judge are selected through the Provincial Civil Services (Judicial) exam.
Why has the AIJS been proposed?
The idea was to ensure:
- Efficient subordinate judiciary
- Address structural issues such as varying pay and remuneration across states
- Fill vacancies faster
- Ensure standard training across states
Beginning of the debate
- The idea of a centralized judicial service was first proposed in the Law Commission 1958 ‘Report on Reforms on Judicial Administration’.
- It was proposed again in the Law Commission Report of 1978, which discussed delays and arrears of cases in the lower courts.
- In 2006, the Parliamentary Standing Committee backed the idea of a pan-Indian judicial service, and also prepared a draft Bill.
What is the judiciary’s view on the AIJS?
- 1992: the Supreme Court directed the Centre to set up an AIJS in All India Judges’ Assn. vs Union of India
- 1993: In review of the judgment, the court left the Centre at liberty to take the initiative on the issue.
- 2017: The Supreme Court took suo motu cognizance of the issue of appointment of district judges, and mooted a “Central Selection Mechanism”.
What is the opposition to the AIJS?
- Blow to federalism: AJIS is seen as an affront to federalism and an encroachment on the powers of states granted by the Constitution.
- Language of Business: Language and representation, for example, are key concerns highlighted by states. Judicial business is conducted in regional languages, whi ch could be affected by central recruitment.
- Quotas: Also, reservations based on caste, and even for rural candidates or linguistic minorities in the state, could be diluted in a central test, it has been argued.
- Separation of power: The opposition is also based on the constitutional concept of the separation of powers.
- Not a complete remedy: Additionally, legal experts have argued that the creation of AIJS will not address the structural issues plaguing the lower judiciary.
Why is the government seeking to revive the idea of AIJS?
- The government has targeted the reform of the lower judiciary in its effort to improve India’s Ease of Doing Business ranking.
- It will act as efficient dispute resolution is one of the key indices in determining the rank.
- AIJS is a step in the direction of ensuring an efficient lower judiciary.
Centre’s argument for AJIS
- The government has cited IAS officers’ examples.
- It has argued that if a central mechanism can work for administrative services — IAS officers learn the language required for their cadre — it can work for judicial services too.
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Judicial Appointments Conundrum Post-NJAC Verdict
Judicial selection needs more than a tweak
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Transparency issues is Judicial Appointments
In recent weeks, the Supreme Court of India’s collegium has been busy. New judges have been appointed to the Court on its advice and long overdue vacancies have been filled up.
Read this before proceeding:
What is the matter of concern?
Ans. Transparency in appointments
- These recommendations are seen as reflective of a new and proactive collegium.
- What ought to concern us, though, is that long-standing apprehensions about the collegium’s operation remain unaddressed: specifically, its opacity and a lack of independent scrutiny of its decisions.
- These misgivings are usually seen in the context of a battle between the executive and the judiciary.
- Less evident is the effect that the failings have on the status of the High Courts.
- Today, even without express constitutional sanction, the collegium effectively exercises a power of supervision over each of the High Courts.
No specified reasons for Exclusion
- For nearly two years, despite vacancies on the Bench, the collegium made no recommendations for appointments to the Supreme Court.
- The conjecture in the press was that this logjam owed to a reluctance amongst some of its members to elevate Justice Akil Kureshi to the Court.
- Indeed, it was only after a change in its composition that the panel recommended on August 17 a list of names for elevation. This list did not contain Justice Kureshi’s name.
- The perfunctory nature of the collegium’s resolutions means that we do not know the reasons for his exclusion.
- We also do not know why five Chief Justices, including Justice Kureshi, and several other puisne judges are now being transferred to different courts.
The public has right to know
- This is not to suggest that these decisions are unfounded. It is possible that each of the choices made is predicated on administrative needs.
- But whatever the rationale, surely the public has a right to know.
What is needed?
Ans. Striking a balance in Separation of Power
- Separation of powers is a bedrock principle of Indian constitutionalism. Inherent in that idea is the guarantee of an autonomous judiciary.
- To that end, the process of appointing and transferring judges assumes salience.
- But the question of how to strike a balance between the sovereign function of making appointments and the need to ensure an independent judiciary has long plagued the republic.
As suggested by Dr. Ambedkar
- The Constitution’s framers wrestled over the question for many days. Ultimately, they adopted what Dr. B.R. Ambedkar described as a “middle course”.
- That path stipulates the following: Judges to the Supreme Court are to be appointed by the President of India in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit.
- Judges to the High Courts are to be appointed by the President in consultation with the CJI, the Governor of the State and the Chief Justice of that court.
- In the case of transfers, the President may move a judge from one High Court to another, after consulting the CJI.
Where does primacy rest?
Ans. In a transparent Collegium system
- In this design, there is no mention of a “collegium”.
- But since 1993, when the Supreme Court rendered a ruling in the Second Judges Case, the word consultation has been interpreted to mean “concurrence”.
- What is more, that concurrence, the Court held there, ought to be secured not from the CJI alone, but from a body of judges that the judgment described as a “collegium”.
- Thus, the Court wound up creating a whole new process for making appointments and transfers and carved out a system where notional primacy came to rest in the top echelons of the judiciary.
This procedure has since been clarified. But there is, in fact, no actual guidance on how judges are to be selected.
The NJAC and after
- In 2015, Parliament sought to undo the procedures put in place by the Court through the 99th Constitutional Amendment.
- The National Judicial Appointments Commission (NJAC), that the law created, comprised members from the judiciary, the executive, and the lay-public.
- But the Court scrapped the efforts to replace the collegium and it held in the Fourth Judges Case that judicial primacy in making appointments and transfers was an essential feature of the Constitution.
- In other words, the Court held that a body that found no mention in the actual text of the Constitution had assumed a position so sacrosanct that it could not be touched even by a constitutional amendment.
Assessing the NJAC
Ans. The NJAC was far from perfect
- There were legitimate fears that the commission might have resulted in the appointment of malleable judges.
- Therefore, it is plausible to argue that until a proper alternative is framed, the collegium represents the best solution.
- This is that allowing senior judges of the Supreme Court primacy in matters of appointments and transfers is the only practical way to guarantee the independence of the judiciary.
Promises are yet unfulfilled over transparency
- When the Court struck down the NJAC, it also promised to reform the existing system. Six years down the line those promises have been all but forgotten.
- The considerations that must go into the procedure for selecting judges is left unexplained.
- The words “merit” and “diversity” are thrown around without any corresponding debates on what they, in fact, mean.
- Somehow, amidst all of this, we have arrived at a consensus that enveloping a veil over the process of selection is essential to judicial autonomy, and that there is no legitimate reason why the public ought to know how judges are chosen and transferred.
Way forward
- It is clear that we have come a long way from a time when Chief Justices of High Courts declined invitations to the Supreme Court, because they valued the work that they were already entrusted with.
- Restoring High Courts to that position of prestige must be seen as essential to the process of building trust in our Constitution.
- Achieving this will no doubt require more than just a tweak in the process of appointments.
Conclusion
- It is clear is that the present system and the mysteries underlining the decision-making only further dilute the High Courts’ prominence.
- At some point we must take seriously the task of reforming the existing scheme because the status quo is ultimately corrosive of the very institutions that it seeks to protect.
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Judicial Appointments Conundrum Post-NJAC Verdict
Supreme Court Collegium shows the way in judicial appointments
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 142 (1)
Mains level: Paper 2- Issue of judicial appointments
Context
For the first time ever, the Supreme Court Collegium led by the Chief Justice of India (CJI) recommended/selected as many as nine persons at one go to be appointed to the apex court.
Significance of the move
- It is a happy augury that the present CJI, Justice N.V. Ramana, could, along with his colleagues in the Collegium, select the judges within a short period of his assumption of office.
- It is a tough task to build a consensus around one person or a few persons, the CJI being the head of the Collegium, has an unenviable task in building that consensus.
- Therefore, it can be said without any fear of contradiction that the job of selecting as many as nine judges for appointment to the Supreme Court was done admirably well.
- The latest resolution of the Collegium gave effect to the multiple judicial pronouncements of the top court on the subject.
- The selection of three women judges, with one of them having a chance to head the top court, a judge belonging to the Scheduled Caste and one from a backward community and the nine selected persons belonging to nine different States, all point towards an enlightened and unbiased approach of the members of the Collegium.
- A needless controversy is sought to be raised by a section of the media about this round of selection citing the non-existing ‘Rule of Seniority’.
Various norms to be followed in judicial appointment
1) Consideration of merit
- Article 142 (1) contains the concept of ‘complete justice’ in any cause or matter which the Supreme Court is enjoined to deliver upon.
- So, while selecting a judge to adorn the Bench, the fundamental consideration should be his/her ability to do complete justice.
- In the Supreme Court Advocates-on-Record Association and Another vs Union of India (1993), the Court spelt out the parameters within which to accomplish the task of selecting candidates for appointment to the higher judiciary.
- The most crucial consideration is the merit of the candidates.
- The merit is the ability of the judge to deliver complete justice.
2) Plurality
- The nine judges who decided the above case were quite aware of these compelling realities.
- So, they said, “In the context of the plurastic [pluralistic] society of India where there are several distinct and differing interests of the people with multiplicity of religions, race, caste and community and with the plurality of culture, it is inevitable that all people should be given equal opportunity in all walks of life and brought into the mainstream.”
3) Transparency
- India is perhaps the only country where the judges select judges to the higher judiciary.
- It is, therefore, necessary to make the norms of selection transparent and open.
- In 2019, a five judge Bench of the Supreme Court, of which the present CJI was also a member, laid emphasis on this point.
- The Bench observed: “There can be no denial that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial office and making judicial appointments”.
Thus, the essence of the norms to be followed in judicial appointments is a judicious blend of merit, seniority, interests of the marginalised and deprived sections of society, women, religions, regions and communities.
Consider the question “What are the various norms to be followed by the Collegium for judicial appointments? What are the issues with Collegium system of judicial appointment?”
Conclusion
The Collegium has started doing its job. Now, it is time for the Government to match the pace and take the process of appointments to its logical conclusion at the earliest.
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Judicial Appointments Conundrum Post-NJAC Verdict
Collegium recommends nine judges for Supreme Court
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Not Much
The Supreme Court Collegium, led by Chief Justice of India (CJI) N.V. Ramana has recommended to the government nine names for appointment as apex court judges.
Significant appointments
- The Collegium has for the first time, in one single resolution, recommended three women judges.
- It has thus sent a strong signal in favor of the representation of women in the highest judiciary.
- The process scripted history by naming Karnataka High Court judge B.V. Nagarathna, who may become India’s first woman CJI.
What is Collegium System?
- The Collegium of judges is the Indian Supreme Court’s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
The procedure followed by the Collegium
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts
- The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Loopholes in the Collegium system
- Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- Judges appointing Judge: The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
Scope for transparency
- In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority opinions admitted the need for transparency, now Collegium’s resolutions are now posted online, but reasons are not given.
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Judicial Appointments Conundrum Post-NJAC Verdict
[pib] Justice Ramana appointed as Chief Justice of India
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Appointment and removal of SC Judge
Mains level: CJI Appointment
The President of India, in the exercise of the powers conferred by clause (2) of Article 124 of the Constitution of India, appointed Shri Justice NV Ramana, a Judge of the Supreme Court, to be the CJI.
Chief Justice of India
- The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.
Appointment
- The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
- Earlier, it was a convention to appoint seniormost judges.
- However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
- Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.
Qualifications
The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:
- He/She is a citizen of India and
- has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
- has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
- is, in the opinion of the President, a distinguished jurist
Functions
- As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
- In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.
On the administrative side, the CJI carries out the following functions:
- maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court
Try this PYQ:
Q. Who/Which of the following is the custodian of the Constitution of India?
(a) The President of India
(b) The Prime Minister of India
(c) The Lok Sabha Secretariat
(d) The Supreme Court of India
Removal
- Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
- Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
- He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
- The voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.
About Justice Ramana
- Justice Ramana will take over as 48th Chief Justice of India.
- He is a first-generation lawyer, having an agricultural background, and hails from Ponnavaram Village, Krishna District in Andhra Pradesh.
- He is an avid reader and literature enthusiast. He is passionate about Carnatic music.
His legal career
- He was called on to the Bar on 10.02.1983.
- Initially, he was appointed as a Permanent Judge of Andhra Pradesh High Court on 27.06.2000. He also functioned as Acting Chief Justice of his parent High Court from 10.3.2013 to 20.5.2013.
- He practiced in the High Court of Andhra Pradesh, Central and Andhra Pradesh Administrative Tribunals, and the Supreme Court of India.
- He specialized in Constitutional, Civil, Labour, Service, and Election matters. He has also practiced before Inter-State River Tribunals.
- He served as Judge of the Supreme Court of India from 17.02.2014.
- He has also served as the Executive Chairman of the National Legal Services Authority (NALSA) since 27.11.2019.
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Judicial Appointments Conundrum Post-NJAC Verdict
Vacancies in High Courts
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium System
Mains level: Judicial appointments and transparency issues
The Supreme Court has asked the government to clarify on the status of 55 recommendations made by the Collegium for judicial appointments to various High Courts six months to nearly a year-and-a-half ago.
What is the news?
HC Vacancies
- The total sanctioned judicial strength in the 25 High Courts is 1,080.
- However, the present working strength is 661 with 419 vacancies as on March 1.
- The Supreme Court has been repeatedly conveying to the government its growing alarm at the judicial vacancies in High Courts.
- Some of these High Courts are functioning only with half their sanctioned judicial strength.
- On average, the courts suffered at least 40% judicial vacancies.
What is the Collegium System?
- The Collegium of judges is the Indian Supreme Court’s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
Try this PYQ:
Q.With reference to the Constitution of India, consider the following statements:
- No High Court shall have the jurisdiction to declare any central law to be constitutionally invalid.
- An amendment to the Constitution of India cannot be called into question by the Supreme Court of India.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Answer: (d)
The Judges Cases
- The First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- The Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
- On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
The procedure followed by the Collegium
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For High Courts
- The CJs of High Courts is appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Loopholes in the Collegium system
- Many have faulted the system, not only for its being seen as something unforeseen by the Constitution makers but also for the way it functions.
- Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
- Embroilment in public controversies and having relatives practising in the same High Court could be common reasons for transfers.
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Judicial Appointments Conundrum Post-NJAC Verdict
Justice NV Ramana set to take over as 48th CJI
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Appointment of CJI
Mains level: Judicial appointments and transparency issues
The Chief Justice of India Sharad Bobde has recommended Justice N.V. Ramana, the senior-most judge of the Supreme Court, as the next top judge from April 24.
Chief Justice of India
- The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.
Appointment
- The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
- Earlier, it was a convention to appoint seniormost judges.
- However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
- Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.
Qualifications to be a SC Judge
The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:
- He/She is a citizen of India and
- has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
- has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
- is, in the opinion of the President, a distinguished jurist
Also read:
Functions
- As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
- In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.
On the administrative side, the CJI carries out the following functions:
- maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court
Try this PYQ:
Q. Who/Which of the following is the custodian of the Constitution of India?
(a) The President of India
(b) The Prime Minister of India
(c) The Lok Sabha Secretariat
(d) The Supreme Court of India
Removal
- Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
- Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
- He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
- The voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
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Judicial Appointments Conundrum Post-NJAC Verdict
Issues related to Judicial appointment
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Collegium System
Mains level: Judicial appointments and transparency issues
The SC Collegium has recommended the transfer of judges of several HC, including the transfer of a Justice of the Andhra Pradesh High Court.
Must read:
What is Collegium?
- Collegium system of the Supreme Court (SC) and the High Courts (HCs) of India is based on the precedence established by the “Three Judges Cases (1982, 1993, 1998) “.
- It is a legally valid system of appointment and transfer of judges in the SC and all HCs.
- It is a system of checks and balance, which ensures the independence of the senior judiciary in India.
The Collegium System: A detailed backgrounder
- The Collegium of judges is the Indian SC’s invention.
- It does not figure in the Constitution, which says judges of the SC and HC are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
The Judges Cases
- The First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- The Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
- On a Presidential Reference in its opinion, the SC, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
The procedure followed by the Collegium:
Appointment of CJI
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For HC
- The CJs of HC is appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Loopholes in the Collegium system
- Many have faulted the system, not only for its being seen as something unforeseen by the Constitution makers but also for the way it functions.
- Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
- Embroilment in public controversies and having relatives practising in the same High Court could be common reasons for transfers.
Scope for transparency
- In respect of appointments, there has been an acknowledgement that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority opinions admitted the need for transparency, now the Collegium’s resolutions are now posted online, but reasons are not given.
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