REFORMS IN COLLEGIUM SYSTEM: POLITY
NEWS: Two months before push against Collegium system, International Commission of Jurists report recommended new law for judicial appointments, transfers
WHAT’S IN THE NEWS?
The issue of judicial appointments in India revolves around the Collegium system, which has been criticized for its lack of transparency and accountability, leading to calls for reform. The National Judicial Appointments Commission (NJAC) was introduced to bring transparency but was struck down by the Supreme Court in 2015, restoring the Collegium system
Judicial Appointment System in India: Collegium and NJAC
Background
• Debate on Judicial Appointments: The appointment of judges has long been debated in India due to concerns over transparency, accountability, and judicial independence.
• Mechanisms for Appointment: Two systems primarily govern judicial appointments in India:
• Collegium System (current system)
• National Judicial Appointments Commission (NJAC) (struck down by the Supreme Court in 2015)
Constitutional Provisions for Judicial Appointments
• Article 124 (Supreme Court Judges):
• The President appoints Supreme Court judges after consulting the Chief Justice of India (CJI) and other necessary judges.
• CJI consultation is required in all judicial appointments except for their own.
• Article 217 (High Court Judges):
• The President appoints High Court judges after consultation with the CJI, the Governor of the state, and the Chief Justice of the respective High Court.
Collegium System
What is the Collegium System?
• Evolved through Judicial Interpretations: The Collegium system is a process for judicial appointments in the Supreme Court and High Courts, which evolved through a series of Supreme Court judgments.
• Primacy of Judiciary: This system grants primacy to the judiciary in selecting its members, thus limiting the role of the executive.
Composition of the Collegium:
• Supreme Court Collegium: Consists of the CJI and the four senior-most judges of the Supreme Court.
• High Court Collegium: Consists of the CJI, the Chief Justice of the High Court, and the two senior-most judges of the High Court.
Evolution of Collegium System
• First Judges Case (1981):
• The Supreme Court ruled that consultation does not mean concurrence, allowing the executive to have primacy in judicial appointments.
• Second Judges Case (1993):
• The Court changed its stance and concluded that consultation means concurrence. This created the Collegium system, giving CJI primacy in judicial appointments.
• Third Judges Case (1998):
• Expanded the Collegium to include the four senior-most judges of the Supreme Court, creating a plurality of opinions in judicial appointments.
Criticisms of the Collegium System
• Lack of Transparency:
• The selection process is conducted behind closed doors, with no clear criteria for appointments.
• Absence of Accountability:
• The process is entirely internal to the judiciary, without oversight from other institutions or authorities, leading to concerns over lack of checks and balances.
• Allegations of Nepotism:
• Accusations of favoritism and appointments based on personal relationships rather than merit have been raised.
• No External Representation:
• The Collegium does not include representatives from outside the judiciary, such as legal scholars or civil society members, which limits diversity in the selection process.
• Delays in Appointments:
• Long delays in filling judicial vacancies due to internal disagreements and procedural inefficiencies.
National Judicial Appointments Commission (NJAC)
Introduction of NJAC:
• 99th Constitutional Amendment Act, 2014:
• The NJAC was introduced to replace the Collegium system and create a more structured and transparent system for judicial appointments.
• Parliamentary Approval: It received near-unanimous support in Parliament and was ratified by over 50% of state legislatures, indicating broad political consensus.
Composition of NJAC:
• Chief Justice of India (CJI) - Chairperson.
• Two senior-most Supreme Court judges (ex officio members).
• Union Minister of Law and Justice (ex officio member).
• Two eminent persons nominated by a committee consisting of the Prime Minister, CJI, and the Leader of Opposition. One of these should be from SC/ST/OBC/minority/women categories.
Objectives of NJAC:
• Transparency and Accountability: The NJAC aimed to bring more transparency and accountability in judicial appointments while balancing judicial independence with executive oversight.
• Diversity: NJAC was designed to ensure diversity in the judiciary by including members from various backgrounds.
Supreme Court’s Verdict on NJAC (2015)
NJAC Struck Down:
• 2015 Verdict:
• The Supreme Court struck down the NJAC Act by a 4:1 majority, arguing that judicial primacy in appointments is part of the Basic Structure Doctrine and cannot be altered.
• The Court viewed NJAC as an attempt by the executive to interfere with judicial independence.
• As a result, the Collegium system was restored, reaffirming the judiciary’s primacy in judicial appointments.
Need for Reforms in Judicial Appointments
Key Issues Needing Reform:
• Enhancing Transparency and Accountability:
• The Collegium system lacks clear selection criteria and is opaque, creating the need for an oversight mechanism to review judicial recommendations.
• Ensuring Diversity:
• There is a lack of diversity in judicial appointments, and they need to better reflect India's social composition.
• Speeding Up Appointments:
• The current system leads to delays in judicial appointments, contributing to backlogs in courts and impacting the delivery of justice.
• Restoring Public Confidence:
• A fair, credible, and efficient appointment process is essential to restore public trust in the judiciary, which has been eroded due to concerns of nepotism and lack of accountability.
Way Forward
• Reforming the Collegium Process:
• Introduce a structured selection mechanism with clearly defined criteria for judicial appointments.
• Maintain records of deliberations to ensure transparency.
• Establish Hybrid Oversight Body:
• Create an oversight body that includes members from the judiciary, executive, legal scholars, and civil society to ensure broader representation and accountability.
• Technology Adoption:
• AI-driven legal databases can be used to assess judicial performance, helping to improve accountability and efficiency.
• Evaluation and Peer Review:
• Implement an evaluation system to assess judicial performance post-appointment and create a peer review mechanism for assessing judicial efficiency.
• Creation of All India Judicial Service:
• Establish an All India Judicial Service to improve the quality of the judiciary and ensure better access to justice across the country.
Global Best Practices
• United Kingdom: The Judicial Appointments Commission (JAC) selects judges for courts and tribunals, with members from both the judiciary and public recruitment processes.
• United States: The President appoints federal judges with the Senate’s advice and consent, ensuring a balanced role of the executive and legislative branches.
• South Africa: The Judicial Service Commission advises the President on judicial appointments, ensuring a transparent and merit-based process.
Conclusion
• The Collegium system has protected judicial independence but faces criticisms regarding transparency, accountability, and diversity.
• A reform that balances judicial independence with executive oversight, while ensuring diversity and transparency, is needed to restore public trust in the judiciary and improve justice delivery.
Source: https://www.thehindu.com/news/national/two-months-before-push-against-collegium-system-international-commission-of-jurists-report-recommended-new-law-for-judicial-appointments-transfers/article69377052.ece