Reforming the process of judicial appointments in India is a topic of growing importance. The current system, where judges are selected by a collegium of senior judges, has faced criticism for its lack of transparency and accountability. Many believe that changing how judges are appointed could lead to a more fair, efficient, and trustworthy judiciary. By introducing clearer guidelines and possibly involving more diverse voices in the selection process, the goal is to ensure that the best and most qualified individuals are chosen to serve in the judiciary, ultimately strengthening the justice system for everyone.
Tags:GS – 2, Polity & Governance- Separation of Powers– JudiciaryTransparency & Accountability– Judgements & Cases
Context:
- The debate over India’s judicial appointment system, governed by Articles 124(2) and 217(1), highlights the issues with the collegium system, such as lack of transparency and accountability.
- The NJAC, aimed at reforming this through a multi-stakeholder approach, was struck down by the Supreme Court in 2015.
- Compared with other countries that use diverse commissions for judicial appointments, a reformed NJAC could improve transparency and efficiency, addressing delays in justice and enhancing public confidence in the judiciary.
Evolution of the Collegium System:
- First Judges Case (1982):
- The Supreme Court in S.P. Gupta vs. Union of India ruled that “consultation” with the Chief Justice of India (CJI) did not equate to “concurrence.”
- This reduced the CJI’s primacy in judicial appointments.
- Allowed any of the four constitutional authorities listed in Article 217 to initiate High Court appointments, favouring the executive’s role.
- This practice was in place for 12 years.
- Second Judges Case (1993):
- The Supreme Court in Supreme Court Advocates-on-Record Association vs. Union of India overruled the First Judges Case by a 7:2 majority.
- Established that “consultation” means “concurrence,” granting the primary role in judicial appointments to the CJI and senior-most judges.
- Formalised the collegium system where the CJI and senior judges collectively decide on appointments.
- Third Judges Case (1998):
- In a Presidential reference, the Supreme Court reaffirmed the decision of the Second Judges Case.
- Held that judicial appointments should be made by the CJI in consultation with the four senior-most Supreme Court judges.
- This ruling solidified the collegium system, making the collective opinion of the CJI and senior judges binding on the government.
- Memorandum of Procedure (MoP):
- Drafted by the Ministry of Law and Justice as per the Supreme Court’s directives in the Second and Third Judges Cases.
- Outlines the process for appointing Supreme Court and High Court judges.
- In 2015, the Supreme Court directed revisions to enhance transparency, leading to a deadlock over certain clauses.
- Proposals to supplement the MoP are currently under Supreme Court consideration.
- National Judicial Appointments Commission (NJAC):
- Proposed by the National Commission to Review the Working of the Indian Constitution (2002).
- The NJAC Bill was introduced in 2013 and reintroduced in 2014, leading to the NJAC Act, 2014, under the Ninety-ninth Constitutional Amendment.
- Aimed to involve the CJI, two senior Supreme Court judges, the Law Minister, and two eminent persons in judicial appointments.
- Declared unconstitutional by the Supreme Court in 2015 due to concerns about inadequate judicial representation and excessive executive involvement.
Status of Judicial Pendency in India (As of June 2024):
- Judicial Appointments:
- Supreme Court: Ended 2023 with 80,439 open cases.
- High Courts: 25 high courts have over 61.7 lakh pending cases.
- District Courts: 4.5 crore cases are pending out of 5.1 crore, representing over 87% of the total caseload.
- Other Significant Facts:
- The government is the largest litigant, accounting for 50% of the pending cases.
- Land and property disputes are the most frequent type of pending cases.
- The COVID-19 pandemic significantly contributed to the increase in pendency.
Arguments in Favour of the Collegium System in India:
- Judicial Independence: The Collegium system ensures judges appoint peers, preserving judiciary independence from political influence, thus upholding fair justice.
- Merit-Based Selection: Judges are chosen for their qualifications and experience, ensuring appointments are made based on competence and not just academic credentials.
- Diversity and Inclusivity: The system promotes diverse representation, including women and marginalised communities, reflecting India’s societal diversity. Notable examples include Justice Leila Seth and the upcoming appointment of Justice BV Nagarathna.
- Institutional Continuity: Reliance on senior judges maintains institutional memory and judicial consistency, essential for stable legal practices amidst political changes.
Arguments Against the Collegium System in India:
- Transparency Issues: The system’s opaque decision-making process undermines public trust, as seen in the controversial appointment of Soumitra Sen despite allegations of misconduct.
- Nepotism Risk: The closed deliberations may foster nepotism and cronyism, with personal connections sometimes influencing appointments over merit.
- Diversity Shortcomings: The system has not effectively ensured diverse representation in terms of gender, caste, and region, potentially leading to an unrepresentative judiciary.
- Lack of External Oversight: Without external input, the system’s decisions may not reflect broader societal concerns. The 2016 Parliamentary Report recommended a more participatory approach involving both judiciary and executive.
Judicial Appointment Mechanisms Across Countries:
- United States of America:
- Appointment Process: Federal judges are appointed by the President with the Senate’s advice and consent. Candidates are assessed by the American Bar Association and reviewed by the Senate Judiciary Committee before a Senate vote.
- Tenure: Judges hold office for life, subject to “good behaviour,” with no fixed retirement age.
- United Kingdom:
- Appointment Process: Since the establishment of the UK Supreme Court in 2005, the Judicial Appointments Commission (JAC) handles appointments. The JAC includes barristers, judges, solicitors, laypeople, and magistrates.
- Residual Power: The Lord Chancellor retains the power to reject candidates based on merit.
- Other Countries:
- Canada, South Africa, and Various U.S. Jurisdictions: Use independent Judicial Appointment Commissions, which are noted for their effectiveness.
- Ireland, Israel, New Zealand, and the Netherlands: Employ judicial appointment committees to oversee the selection process.
Proposed Enhancements for the Collegium System:
- Enhanced Transparency and Accountability:
- Implement clear guidelines and procedures for appointments.
- Incorporate public consultations to ensure the judiciary remains accountable and trustworthy.
- Balanced Role for the Executive:
- Increase the executive’s role in the appointment process while maintaining judicial independence.
- Revise the NJAC or introduce a similar body with representatives from the judiciary, executive, and civil society to balance independence and accountability.
- Merit-Based Appointments:
- Strictly adhere to merit-based criteria, focusing on qualifications, experience, and judicial acumen for appointments.
- Ensure the selection of the most competent and qualified candidates.
- Time-Bound Appointments:
- Establish strict timelines for the Collegium process to prevent prolonged vacancies.
- Ensure the judiciary remains fully staffed and capable of handling its caseload efficiently.
- Public Participation:
- Actively seek public input through consultations, online forums, and feedback mechanisms.
- Enhance responsiveness to public needs and expectations.
Conclusion
Reforming the Collegium system to address transparency, accountability, and delays, potentially through a revised NJAC or similar reforms, could improve the efficiency and effectiveness of India’s judiciary.
Source: TH
FAQs
Q: Why is there a need to reform the judicial appointment process in India?
- Answer: Reforming the judicial appointment process is important to ensure transparency, fairness, and efficiency. Currently, the process is seen by some as lacking in these areas, leading to delays in appointments and concerns about the selection criteria for judges.
Q: How are judges currently appointed in India?
- Answer: Judges in India are appointed through a system called the collegium, where the Chief Justice of India and senior judges of the Supreme Court recommend names for appointments. However, this process is not clearly defined in the Constitution and has been criticized for its lack of transparency.
Q: What changes are being suggested to improve the appointment process?
- Answer: Some suggested reforms include establishing a Judicial Appointments Commission (JAC) to make the process more transparent and accountable. This body would include representatives from the judiciary, government, and civil society, ensuring a balanced approach to appointments.
Q: How could reforming the process benefit the judiciary?
- Answer: Reforming the appointment process could lead to a more diverse and competent judiciary. It could also reduce delays in filling vacancies, leading to faster case resolutions and improved public trust in the judicial system.
Q: What challenges could arise in reforming judicial appointments?
- Answer: Challenges include balancing the independence of the judiciary with accountability, avoiding political interference, and building consensus among stakeholders on the best approach to reform. Implementing changes would require careful planning and collaboration across different branches of government.
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