SC Collegium recommends 35 names for judges in six HCs-The Hindu-26-07-2022
(Dear student this is related to mains context and but some time conceptual question can be asked in Prelim so for prelim do those part which are factual and which exist and change take place with time but for mains you have to be ready for analysis and try to incorporate all pro and cons of collegium system)
In a significant step to fill vacancies in the higher judiciary, the Supreme Court Collegium headed by Chief Justice N.V. Ramana on Monday approved and recommended to the Centre the proposal for the elevation of 20 advocates and 15 judicial officers as judges in six High Courts.
Prelim & Mains
During a national seminar of the lawyers at Ahmedabad on 17 October, 1981Bar council of India recommended the establishment of a system, It was recommended that there should be a collegium system for the appointment of the Supreme Court Judges by the following authorities.
The Chief Justice of India
Five senior Judges of the Supreme Court
Two representatives would be representing the Bar Council of India and the Supreme Court Bar Association.
The recommendation of such a Collegium system should be binding on the President though he can say for reconsideration on certain grounds.
How Appointment of CJI take place from time to time
Until 1973, there existed a consensus between the Government of the day and the Chief Justice of India, in most cases, the senior-most judge of the Supreme Court was to be appointed as the Chief Justice of India. but in 1973, A.N.Ray was appointed as the Chief Justice of India who superseded three other Supreme Court judges senior to him, which violated the convention formed earlier since Justice A.N.Ray.Again1977, another chief justice was appointed who superseded his seniors. This resulted in a clash between the Executive and the Judiciary.
First judges case, 1982
In this case, the Supreme court overruled, Now the President was not bound to make a decision based on the consultation of the Supreme Court.
Another important point in the discussion, in this case, was the part where the Supreme Court decided that a High Court Judge can be transferred to any other high court of a state even against his will.
Second judges case,1993
In this case, the Supreme court overruled its earlier verdict and changed the meaning of consultation to concurrence. Thus binding the President of India with the consultations of the Chief justice of India.
This resulted in the birth of the Collegium System.
Third Judges Case, 1998
In this case, the Supreme court overruled, The chief justice won’t be the only one as a part of the consultation process. Consultation would include a collegium of 4 senior-most judges of the Supreme court. Even if 2 of the judges are against the opinion, the CJI will not recommend it to the government.
Problems with Collegium System
Opaqueness: The problem with collegium is that it is completely opaque and open to misuse.
Nepotism: Near relation or well-wisher had been a judge in the higher courts or is a senior advocate (Uncle Judge syndrome).
Lack of Permanent Commission: The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism to profile appointees. This led to inefficiency in the appointment process and the higher judiciary has a huge number of vacant positions.
Measures required to reform for Judicial appointment in India
The entire appointment system needs to be opened up to the Right to Information (RTI) Act, so that any citizen can seek and get information about the process through which a judge was appointed Vacancies in the Supreme Court and in the High Courts need to be filled up.
Most High Courts are functioning with half or one third the sanctioned strength.The persons of doubtful integrity who might have been appointed by the mistake of the collegium have to be weeded out. But methods like voluntary retirement could be an option.
The “uncle judges” syndrome could be eliminated by not posting any judge in a High Court where his/her kin was practising.
The infrastructure in the courts needs improvement — there will not be enough court halls, chambers, or staff, if all the vacancies are filled.
There needs to be appointment of ad hoc or additional judges to clear pending cases — the collegium is generally reluctant to appoint retiring judges as ad hoc judges.
The Supreme Court should lay down institutional mechanisms for transparent functioning of the collegium.
The Collegium should accept applications for appointments as High Court judges. This is followed in the U.K. and can be adopted in India too.
There must be full and complete disclosure of relationships and affiliations of applicants to sitting and retired judges.
Minimum eligibility criteria for consideration need to be laid down, including appearances in important cases.
All the three organs of the state should introspect as to why there has been no or inadequate representation in the higher judiciary from amongst women.
Provide a uniform retirement age for judges of the Supreme Court and the High Courts, so that the present practice of some judges seeking to be in the good books of the members of collegiums is avoided.
A minimum tenure should be provided to the Chief Justice of India and the Chief Justice of High Courts.
Court management should not be vested with Judicial Officers but assigned to trained managers.
Permanent Commission may be constituted to scrutinize the credentials of candidates and recommend names to collegium.
The Supreme Court should lay down institutional mechanisms for transparent functioning of the collegium.It is of the utmost importance that the Judiciary, which is the main bulwark of civil liberties, should be completely independent.Permanent Commission should be constituted to scrutinize the credentials of candidates and recommend names to collegium.