JUDICIAL APPOINTMENTS

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Context:

The Supreme Court of India recently addressed the issue of judicial appointments in a case involving the Himachal Pradesh High Court. 

Background of the Case Two senior lower court judges in Himachal Pradesh had been ignored for promotion to the high court.  They alleged that the decision to not promote them was taken without proper collective consultation by the high court collegium.  The decision was taken individually by the Chief Justice of the High Court.

Key Highlights of the Supreme Court Ruling

• The Supreme Court highlighted that the process of appointing judges to higher courts must not be the Privilege of a single individual. 

• • • Decisions should involve a collaborative effort by all members of the collegium.
    • Collective consultation ensures that the decisions are made after discussing diverse opinions.
• The Supreme Court stated that transparency in appointments is important for maintaining public trust.
  • • The court also highlighted the need to protect sensitive information related to judicial appointments. 
    •  Balancing transparency with confidentiality is critical to maintaining the integrity of the appointment process.

Process of Judicial Appointments

• The judicial appointment process in India has undergone important changes through various Supreme Court judgments, leading to the establishment of the Collegium System.

• The Collegium System is not established by any specific law or has no constitutional provision, yet it has become the main method for judicial appointments in India. 

How Does It Work?

• The Justice of India initiates the proposal and forwards it to the Union Minister of Law, Justice, and Company Affairs.
• For the appointments to the Supreme Court, the CJI consults with the four senior-most Supreme Court judges. 
  • • For High Court appointments, the collegium includes the CJI, two senior-most Supreme Court judges, and the Chief Justice of the concerned High Court.

Constitutional Provisions Article 124(2) of the Indian Constitution mandates that the President appoints Supreme Court judges after consulting the Chief Justice of India (CJI) and such other judges of the Supreme Court. The CJI's recommendation is crucial; except for their own appointment. Article 217 underlines that High Court judges are appointed by the President in consultation with the Chief Justice of India (CJI), the Governor of the state, and the Chief Justice of the respective High Court.

First Judges Case (1981)

• The Supreme Court ruled that "consultation" by the President with the CJI is not a mutual agreement or "binding", it only means an exchange of thoughts. 

• By giving the President additional power in the Judge selection process, the ruling increased executive control over judicial appointments.

 Second Judges Case (1993)

• This judgement overturned the previous ruling, establishing that "consultation" means "consensus." 
• The court stated that the CJI's recommendations must be developed in consultation with a collegium of two senior judges.
• This case expanded the judiciary's role in the appointing process.

Third Judges Case (1998)

• The ruling increased the collegium's membership to include the Chief Justice of India and the Supreme Court's four senior-most justices. 
• This mechanism was designed to increase judicial supervision over appointments and transfers.

Challenges

• The judicial appointment procedure is condemned for being opaque and having ambiguous selection criteria.
• Judicial vacancies lead to justice to be delayed.
• Control over judicial appointments is a source of tension between the executive and judiciary.

National Judicial Appointments Commission (NJAC) The 99th Constitutional Amendment Act was passed by the parliament in an effort to improve the openness and inclusivity of the judicial appointment procedure. It was designed to include the CJI, the Law Minister, two eminent persons, and two senior judges. The objective of this framework is to strike a balance between the executive, judicial, and civil society functions during the selection process. The Supreme Court nullified the NJAC Act in 2015, highlighting that it possibly compromised judicial independence and so violated the fundamental framework of the Indian Constitution.

Way Forward

• Steps must be taken to increase transparency in the collegium system.
• Clear criteria for judicial appointments and more public accountability could address some of the criticisms.
• The need of the hour is to reform the appointment process to reduce delays and address vacancies to enhance the efficiency of the judiciary.
• Adequate reforms must be taken to strike a balance between judicial independence and accountability. 

Must Read Articles: 

ALL INDIA JUDICIAL SERVICE

ADHOC JUDGES

Source: 

NDTV

Wikipedia

PRACTICE QUESTION Q. The Indian judiciary has faced criticism for its slow pace of proceedings. Analyse the factors contributing to this delay and propose comprehensive reforms to expedite the judicial process. (250 Words)