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.

Recent controversy

• Bombay high court has its main seat in Mumbai and branches in Nagpur, Aurangabad, and Goa.
• Low strength – currently Bombay high court has 57 judges against a sanctioned strength of 96 judges also five more judges are expected to retire this year.
• The supreme court collegium headed by the Chief Justice of India had recommended the appointment of ten advocates as judges.
• According to the National Judicial Data Grid, there are 5.88 lakh cases pending before the Bombay high court of which 1.14 lakh fresh cases were filed in the last one year.

Reasons behind the situation

• The main reason behind this situation is the overall shortage of judges in the high courts in India.
• The situation is worst in the subordinate courts where along with the shortage there is also a lack of basic infrastructure.
• There are more than 5,000 vacancies in subordinate courts against the total sanctioned strength of 24,490 judges
• Disruptions due to COVID further clogged the Indian judicial system.
• Though there was a drop in new cases as courts went digital, but with lockdown restrictions in place, a slower disposal rate resulted in more pending cases.

Collegium system

• The Collegium system is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an act of the parliament or by a provision of the constitution.
• The Supreme Court collegium is headed by the Chief Justice of India and it also comprises four other senior-most judges of the court.
• A High Court collegium is led by its Chief Justice of the respective High Court and four other senior-most judges of that court.
• Names recommended for appointment by a High Court collegium reach the government only after approval by the Chief Justice of India 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 the names have been decided by the collegium.

Evolution of the Collegium System

The collegium system has its base 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 doesn’t 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 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.

• THIRD JUDGES CASE

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

• It lacks transparency and accountability.
• It creates a scope for nepotism.
• It overlooks several talented junior judges and advocates

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:

• CJI and the two senior-most judges
• The law minister
• An eminent person from the public, to be chosen by President in consultation with the CJI

The government brought the 99^th 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