Appointing Judges in Higher Judiciary? Detailed Debate on Collegium System- Important (Download PDF)

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The constitution of India establishes an integrated judicial system with Supreme Court at the top and High Courts for states. Under high courts, there is a hierarchy of subordinate courts viz. district courts and other lower courts.

This single system of courts, adopted from the government of India act of 1935, enforces both central as well as state laws.

About Collegium System

  • System of appointment and transfer of judges evolved through judgments of the Supreme Court.
  • Supreme Court collegium is headed by the Chief Justice of India and comprises four other senior most judges of the court.
  • Chief Justice and four other senior most judges of lead respective High Court collegium.
  • Names recommended for appointment by a High Court collegium are forwarded to government only after approval by the CJI and the Supreme Court collegium.
  • Judges of the higher judiciary are appointed only through the collegium system — and the government has a role only after names have already been decided by the collegium.
  • In this present system the government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) only when the lawyer is already picked by collegium to be elevated as a judge in a High Court or the Supreme Court.
  • If the collegium reiterates the same names, the government is bounded under Constitution Bench judgments, to appoint them as judges.
Selection made more transparent by placing the guidelines

Selection Made More Transparent by Placing the Guidelines

Selection made more transparent by placing the guidelines

Important Cases of Judge Appointment and Birth of Collegium System

  • Over the course of the three cases, the court evolved the principle of judicial independence to mean that no other branch of the state - including the legislature and the executive - would have any say in the appointment of judges. Thus over time the system of appointment of judges has become more judiciary centric which cannot be challenged.

Following are the three cases

  1. S. P. Gupta vs. Union of India – 1981 (known as Judges’ Transfer case)
  2. Supreme Court Advocates-on Record Association vs. Union of India - 1993
  3. In re Special Reference 1 of 1998
  • The court then created the collegium system, which has been in use since the judgment in the Second Judges Case, issued in 1993.
  • The Third Judges Case is not a case but an opinion delivered by the Supreme Court of India responding to a question of law regarding the collegium system, raised by then President of India K. R. Narayanan, in July 1998 under his constitutional powers.
  • In January 2013, the court dismissed as without locus standi, a public interest litigation filed by NGO Suraz India Trust that sought to challenge the collegium system.
  • In July 2013, Chief Justice of India P. Sathasivam spoke against any attempts to change the collegium system.

Judicial Appointment Commission

  • On the 5th September, 2013, the Rajya Sabha passed The Constitution (120th Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of India, 1950 and establishes the Judicial Appointment Commission, on whose recommendation the President would appoint judges to the higher judiciary.
  • The responsibility of regulating Judicial Appointment Commission lays on the hands of the Parliament by way of Acts, rules, regulations etc. passed through the regular legislative process.

Problems with the Collegium System

  • Critics argue that the system is non-transparent not involving any kind of democratic process.
  • It seems as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure.
  • There is no public knowledge of how and when a collegium meets, and how it takes its decisions.
  • Lawyers too are usually in the dark on whether their names were considered for elevation as a judge.

Appointments Being Made Now- Gridlock in Appointments

  • The collegium has been making recommendations for appointments and transfer of judges.
  • In 2015 ruling, paved the way for a new Memorandum of Procedure (MoP) to guide future appointments alleviating concerns on lack of eligibility criteria and transparency.
  • The bench then asked the government to draft a new MoP after consultation with the CJI.
  • The MoP is still not finalized owing to lack of consensus on several fronts between the judiciary and the government.
  • With the new MoP not in place, the government has been reluctant in clearing appointments, which has also become a matter of judicial decision with petitions filed in the Supreme Court against the delay in making appointments.

- Published/Last Modified on: September 6, 2017

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