Appointment of SC Judges

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    Syllabus: GS2/ Structure and Functions of Judiciary

    News

    • Chief Justice of India D.Y. Chandrachud recently said has prepared a “broad platform” to assess every one of the “top 50 judges” in the country who would be considered for appointment as judges of the Supreme Court.

    About

    • One of the criticisms about the collegium system is that it has no factual data to evaluate people who are considered for appointment to the Supreme Court
    • The idea is to make the process of appointments to the court transparent by identifying definite parameters of selection even though the process cannot be held in the public realm. 
    • It would sift through the candidates’ judgments, their quality, and so on.
    • However,it is not clear whether the “top” judges would be identified from the first 50 of the senior-most High Court judges or whether the candidates would be picked based on their merit and performance. 
    • Now the appointments are made on the basis of seniority, regional representation and merit while following a Memorandum of Procedure moulded through the Three Judges Cases.
    Constitutional Provisions for Appointment of Judges
    Judges of the Supreme Court and High Courts are appointed by the President under Articles 124(2) and 217 of the Constitution.

    Article 124 says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Courts in the States as he may deem necessary.
    Article 217: “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.”

    What is the Collegium System?

    • It is a mechanism invented by the judiciary for the appointment and transfer of judges, through Second and  Third Judges Case judgments.
    • There is no such law or constitutional provision that mentions or defines the collegium system.
    • It is headed by the CJI and comprises 4 other senior-most judges of the court. An HC collegium is led by its Chief Justice and four other senior-most judges of that court.

    Evolution:  The collegium system has its genesis in a series of Supreme Court judgments called the ‘Judges Cases’. 

    • FIRST JUDGES CASE: In S P Gupta Vs Union of India, 1981, the Supreme Court judgment held that consultation does not mean concurrence and it only implies an exchange of views.
    • SECOND JUDGES CASE: In The Supreme Court Advocates-on-Record Association Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.

    – The majority verdict in the Second Judges Case accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments.

    – The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.

    • THIRD JUDGES CASE (1998): The Court opined that the consultation process to be adopted by the Chief Justice of India requires ‘consultation of plurality judges’.

    – The sole opinion of the CJI does not constitute the consultation process. He should consult a collegium of four senior-most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.

    Role of Government in Judicial Appointment

    • The government’s role is limited. It can only get an inquiry conducted by the Home Ministry if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
    • It can also raise objections and seek clarifications regarding the collegium’s choices.
    • But if the collegium reiterates the same names, the government is bound to appoint them as judges.

    Criticism Against the Collegium System

    • Lack of Transparency and Accountability: Neither with the executive nor with the judiciary.
    • Not envisaged by the founding fathers of the constitution nor enacted by the Parliament.
    • Uncle-Judge Syndrome: Scope for nepotism; high offices of higher judiciary are patronised.
    • Old Boys Club: Overlooks several talented junior judges and advocates and prefers practising lawyers who are largely males and from upper castes rather than judges of subordinate judiciary who come from diverse backgrounds.

    Way Ahead:

    • The criticisms over recommendations of the collegium highlights the need for collective leadership and transparent decision making in the Supreme Court. 
    • There is a need to establish a participatory process with adequate safeguards to the judicial independence, while guaranteeing judicial primacy but not judicial exclusivity. 

    Source: TH