06 June, 2022
10 Min Read
APPOINTMENT OF JUDGES IN INDIA
It was found that at least 26 recommendations for the appointment of judges to the Bombay high court which is currently functioning at almost half of its sanctioned strength are pending with the government at different stages of consideration.
Reasons behind the situation
Evolution of the Collegium System
The collegium system has its base in a series of Supreme Court judgments called the ‘Judges Cases’.
In S P Gupta Vs Union of India, 1981, the Supreme Court judgment held that consultation doesn’t mean concurrence and it only implies an exchange of views.
In The Supreme Court Advocates-on-Record Association Vs Union of India in 1993, a nine-judge Constitution Bench overruled the previous decision and came up with 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 because this being a topic within the judicial family, the executive cannot have an equal role in the matter.
In the Third Judges case in 1998, the Court ruled that the consultation process adopted by the Chief Justice of India requires ‘consultation of plurality judges’.
The sole opinion of the CJI will 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 opposite opinion, he should not send the recommendation to the government.
The court also held that the recommendation made by the Chief Justice of India without following the norms and requirements of the consultation process is not binding on the government.
Criticism of the Collegium System
Role of government in judicial appointment
The government’s role is limited. The government can object and seek clarification regarding the collegium choice. But if the collegium sends the same name again, then the government is bound under Constitution bench judgment, to appoint them as judges.
Efforts made to address the Collegium System
Justice M N Venkatachaliah’s commission has favoured the change and prescribed a National Judicial Appointment Commission which will consist of:
The government brought the 99th Constitutional Amendment Act in 2014, for the formation of the National Judicial Appointment Commission to replace the collegium system for the appointment of judges.
A five judges constitutional bench declared this act unconstitutional in 2015 on the ground that it posed a threat to the independence of the judiciary.
Constitutional Provisions for Appointment of Judges
Source: The Hindu
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