General Studies Paper 2 (Governance) (Indian Polity & Constitution)
Question:- 34. ‘ Judges appoint judges’ in the Indian judicial system. Comment. Answer in 150 words
Aug 08, 2022

Indian judiciary

Answer:-

INTRODUCTION:

In India, filling of vacancies in the judiciary is one of the most important practices of ensuring justice. The procedure to appoint judges to the Supreme Court and High Courts is listed under Article 124 and Article 217 respectively of the country’s Constitution. The phrase ‘judges selecting judges’ in India has been infamously used for the collegium system of appointing and transferring judges of Supreme Court and High Courts.

 

LINKAGE POINT:

This system has evolved after a series of discussions and deliberations between the judiciary and executive which manifested into 4 very important cases namely:

 

BODY PARAGRAPH-1:

-The first judges case- the court held that the consultation with the CJI should be “full and effective”

-The second judges case, 1993- ruled that the CJI would have to consult a collegium of his two senior-most judges in the apex court on judicial appointments

-The Third judges case, 1998- expanded the judicial collegium to its present composition of the CJI and four of his senior-most judges

Over the course of these 3 cases, the court evolved the principle of judicial independence- a part of basic structure of Constitution. This meant that no other branch of the state (legislature and executive) can interfere with the appointment of judges. It is with this principle in mind that the SC introduced the collegium system.

NJAC and 99th Amendment: The government through the 99th constitutional amendment wanted to replace the collegium with the NJAC. The NJAC comprised of 3 judges of SC, a central law minister, and 2 civil society experts. A person would not be recommended by NJAC if any 2 of its members did not accept such a recommendation = making the appointment process more broad-based.

-The fourth judges case- In the Fourth Judges Case, 2015, the SC upheld the primacy of the collegium by striking down the NJAC law as it involved other organs in appointments to judiciary, hence, against judicial independence

 

BODY PARAGRAPH-2:

As of now, the Supreme Court Collegium is headed by the Chief Justice of India and comprises 4 other senior-most judges of the SC whereas a High Court collegium is headed by its Chief Justice and 4 other senior-most judges of that court. 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. Names recommended for appointment by a High Court collegium reach the government only after approval by the CJI and the Supreme Court collegium. The government can return the recommendation for reconsideration by Collegium. If the collegium reiterates its recommendation then the government is mandated to appoint the respective person.

Over time, the collegium system has attracted criticism, even from within the judicial institution, for its lack of transparency. It has even been accused of nepotism. However, as seen above, the fact is that the judiciary is merely one of the many players involved in the process. Many authorities are involved, including the Union Law Ministry, state governments, Governors, High Court Collegia, Intelligence Bureau, and lastly, the topmost executive, who all are designated to examine the suitability of a candidate.

 

CONCLUSION:

The collegium system was introduced for strengthening and improving the appointment process. To ensure that CJI’s opinion is not merely his/her individual opinion but an opinion formed collectively by a body of people at the apex level of the judiciary. Ensuring effective justice for the citizens is a prerogative of any progressive democracy. The collegium system has evolved over time to ensure delivery of justice to people and maintain the independence of judiciary. The three organs of the government must come together to fill loopholes in the system and address issues like delay in appointments of judges, pendency of cases etc. Also, high-level discussions about justice delivery can go a long way in deciding upon what’s the best solution for justice mechanism in our democracy.