Government Representation in Collegiums


    In Context

    • Recently the Union Law Minister Kiren Rijiju has written to Chief Justice of India D Y Chandrachud to give suggestions on the appointment of judges.

    More about the news

    • Government representative in Collegiums:
      • According to Union Minister Rijiju’s letter, government representatives should be a part of the Supreme Court and High Court Collegiums. 
      • This would be a major departure from the existing system where the Collegiums comprised solely of senior judges.
    • Significance:
      • Union Minister’s latest recommendation is markedly different as, instead of proposing a new forum altogether (like NJAC), he recommends changing the existing mechanism of judicial appointments to include representatives of the centre.
    • Criticisms: 
      • Undermining independence of judiciary:
        • According to critics, this is going to grossly undermine the very idea of independence of the judiciary and shall unsettle the fine balance as envisaged through the constitution.
      • Non-inclusive:
        • While the proposed NJAC included greater and more diverse representation of India’s political heads, adding solely a representation of the ruling government is seen by many as an egregious attack not only on the independence of the judiciary but also on the competitive balance between the ruling party and the opposition.

    About Collegium system

    • About:
      • Judges of the High Courts and the Supreme Court are appointed by the provisions mentioned in Articles 124 and 217 of the Constitution of India. 
        • Articles 124 and 217 state that the President shall appoint judges to the Supreme Court and high courts after consultation with the Chief Justice of India and other judges.
    • Composition:
      • The Supreme Court Collegium consists of the CJI and four senior-most judges of the apex court. 
      • High Court Collegium consists of the Chief Justice of the High Court and two senior-most judges of that particular court. 
    • Recommendations: 
      • Crucially, recommendations made by the Collegium are binding: while the government can flag concerns and ask the Collegium to reconsider, if the Collegium chooses to reiterate its recommendations, they become binding.
    • Significance of the system:
      • The collegium system was created to maintain the basic structure of the Constitution by keeping the judiciary independent. 
      • It was also to ensure that the Chief Justice of India does not impose his or her individual opinion regarding the appointment of judges, but rather it is a collective opinion of the entire body.  
    • Issues with the current collegium system:
      • 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
      • In the collegium system, there are no criteria for testing the candidate or for doing a background check to establish the credibility of the candidate
      • 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.

    About MoP (Memorandum of Procedure)

    • About:
      • The Memorandum of Procedure (MoP) is the official playbook agreed upon by the government and the judiciary on the appointment of judges. 
    • Significance:
      • It is a crucial document that governs the collegium system of appointing judges.
      • Since the collegium system evolved through a series of ruling by the Supreme Court, and is not based on legislation, the MoP is the bedrock of the process of appointments.
    • Re-negotiation of MoP:
      • The MoP was sought to be re-negotiated after the SC in 2015 struck down the constitutional amendment that had brought in the National Judicial Appointments Commission (NJAC).
      • After the NJAC Act was struck down, the SC directed the government to finalise the existing MoP by supplementing it in consultation with the Supreme Court collegium, taking into consideration eligibility criteria, transparency, establishment of a new secretariat and a mechanism to deal with complaints against proposed candidates.

    About NJAC

    • About:
      • The NJAC is the central feature of a long-standing proposal to do away with the Collegium. 
      • In 2014, through the 99th Amendment to the Constitution, the government passed a bill that would set up the NJAC, giving it significantly more say in the appointment of judges.
    • Composition:
      • The NJAC was to comprise 
        • The Chief Justice of India as the ex officio Chairperson, 
        • Two senior-most Supreme Court Judges as ex officio members, 
        • The Union Minister of Law and Justice as ex officio member, and 
        • Two eminent persons from civil society — one of whom would be nominated by a committee consisting of the CJI, Prime Minster and the Leader of Opposition in the Lok Sabha, and the other would be nominated from the SC/ST/OBC/minority communities or women. 
    • Repeal:
      • However, after a Supreme Court judgement struck down this new amendment, the government was forced to repeal the law.

    Way Ahead

    • The Minister’s suggestion, if put into practice, would fundamentally alter the system by putting a government representative in the Collegium itself. 
    • While it is unclear what specific powers this representative will have, just the mere presence of a non-judicial member is likely to change things.
    • The matter is very critical and complex because, on the one hand, the judiciary should act independently, but on the other hand, the legislature and the executive cannot be completely excluded.

    Source: TH