Context

Judiciary is being challenged, from within and outside. It must shield itself from further erosion of its independence and competence by scrupulously following the law, as declared by the Supreme Court (SC) itself.

How the Collegium helped to secure the independence of judiciary

• In 1993, the SC held the following:
• The process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process’.
• The process aims at selecting the best and most suitable persons available for appointment.
• The Collegium consists of the CJI and the four senior-most judges of the SC and high courts.
• It was devised to ensure that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.
• By judicial interpretation, the Supreme Court re-interpreting Article 124 and 214 of the Constitution empowered the judiciary to make appointments to the higher judiciary to secure the rule of law.

Threat to the judicial independence

• The framers of the Constitution were alive to the likely erosion of judicial independence.
• On May 23, 1949, K T Shah stated that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence.
• In  2016, the Supreme Court struck down a constitutional amendment for creating the National Judicial Appointments Commission (NJAC).
• The SC strongly disapproved of any role for the political executive in the final selection and appointment of judges.
• The SC said that “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.

Consider the question “How the Collegium system helped the Judiciary secure its independence? What are the issues with it?”

Conclusion

The selection of deserving judges is essential to ensure the independence of the judiciary. The Collegium must do its best in this task.

Back2Basics: About the National Judicial Appointments Commission

• The NJAC or National Judicial Appointments Commission sought to change the system, where judges would have been appointed by a commission where the legislative and the executive would have had a role.
• The NJAC was supposed to comprise of the Chief Justice of India (Chairperson, ex-officio), two other senior judges of the Supreme Court, The Union Minister of Law and Justice, ex-officio and two eminent persons, to be appointed by the Chief Justice of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha.
• The bill was passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014, and became an Act.
• The NJAC replaced the collegium system for the appointment of judges.
• The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and the President gave his assent on 31 December 2014.
• The NJAC Act became effective from April 13, 2015.
• The NJAC enjoyed support from the Supreme Court Bar Association and many legal luminaries but was also challenged by some lawyer associations and groups before the Supreme Court of India through Writ Petitions.
• A three-judge bench of the Supreme Court referred the matter to a Constitution Bench that heard different arguments for over a month.
•  Finally, on October 16, a five-judge bench of the Supreme Court declared the 99th Constitutional Amendment Act and the NJAC Act 2014 “unconstitutional and void”.

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