The SC Collegium and independence of judiciary - An analysis

The independence of the judiciary is a complex issue, and various designs and efforts have yielded mixed results.

The SC Collegium and independence of judiciary - An analysis

---

Read more on - Polity | Economy | Schemes | S&T | Environment

---

• Independence of judiciary: The constitution of India ensures that the judiciary is given due independence, through a host of means. A key aspect of that story is how the judges to higher judiciary are appointed.
• Collegium System of Supreme Court: Since the 1990s, the Supreme Court constituted a "Collegium" composed of senior-most judges, to recommend names, to the Law Ministry, government of India. There have been many criticisms of the process over the years.
• 2021 update: The Supreme Court of India’s collegium has been quite busy in 2021, and new judges have been appointed to the Court on its advice and long overdue vacancies filled up. After a meeting on September 16, the body made proposals to alter the existing composition of various High Courts. When these recommendations are notified, new Chief Justices will be appointed to as many as eight different courts, five existing Chief Justices will swap positions with others, and many puisne judges will be moved to new courts.

1. These recommendations are reflective of a new and proactive collegium.
2. A resolve for swiftness is fine as far as it goes; clearing up vacancies is a minimal requirement of a functioning system.
3. The concern is the Collegium's opacity and a lack of independent scrutiny of its decisions.
4. Today, even without express constitutional sanction, the collegium effectively exercises a power of supervision over each of the High Courts.
5. For nearly two years, despite vacancies on the Bench, the collegium made no recommendations for appointments to the Supreme Court. Experts quietly surmised that this was so due to a reluctance amongst some of its members (judges) to elevate Justice Akil Kureshi to the Court. Even in the 2021 list after CJI Ramana took over, Justice Qureshi wasn't on the list.

• Why not: The nature of the collegium’s resolutions means that no one can explain the reasons for his exclusion. The public never comes to know the precise reason for most decisions made.
• Separation of powers: This is the foundational principle of Indian constitutionalism. This is also the guarantee of an autonomous judiciary. The question is: how to strike a balance between the sovereign function of making appointments and the need to ensure an independent judiciary.
• Middle course: The Constitution’s framers wrestled over the question for many days. Ultimately, they adopted what Dr. B.R. Ambedkar described as a “middle course”. That path is: Judges to the Supreme Court are to be appointed by the President of India in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit. Judges to the High Courts are to be appointed by the President in consultation with the CJI, the Governor of the State and the Chief Justice of that court. In the case of transfers, the President may move a judge from one High Court to another, after consulting the CJI.
• Where primacy rests: In this scheme, there is no mention of a “collegium”. But since 1993, when the Supreme Court rendered a ruling in the Second Judges Case, the word consultation has been interpreted to mean “concurrence”. What is more, that concurrence, the Court held there, ought to be secured not from the CJI alone, but from a body of judges that the judgment described as a “collegium”. Thus, the Court wound up creating a whole new process for making appointments and transfers and carved out a system where notional primacy came to rest in the top echelons of the judiciary.

1. This procedure has since been clarified. The collegium for appointments to the Supreme Court and for transfers between High Courts now comprises the CJI and his four senior-most colleagues, and for appointments to the High Courts comprises the CJI and his two senior-most colleagues.
2. When appointing judges to the High Courts, the collegium must also consult other senior judges on the Supreme Court who had previously served as judges of the High Court under consideration. All of this is contained in a “Memorandum of Procedure” (MoP). But there is, in fact, no actual guidance on how judges are to be selected.

• The NJAC and after: In 2015, Parliament tried to undo the complex procedures put in place by the Court, through the 99th Constitutional Amendment.

1. The National Judicial Appointments Commission (NJAC), that the law created, comprised members from the judiciary, the executive, and the lay-public. But the Court scrapped it, and it held in the Fourth Judges Case that judicial primacy in making appointments and transfers was an essential feature of the Constitution.
2. The Court held that a body that found no mention in the actual text of the Constitution had assumed a position so sacrosanct that it could not be touched even by a constitutional amendment.
3. The NJAC was far from perfect. There were legitimate fears that the commission might have resulted in the appointment of malleable judges. But when the Court struck down the NJAC, it promised to reform the existing system.
4. Six years down the line those promises have been all but forgotten. A new MoP is nowhere in sight. The considerations that must go into the procedure for selecting judges is left unexplained. The words “merit” and “diversity” are not truly what they mean in action.

• Bad for the High Courts: In the latest set of recommendations, five Chief Justices of High Courts have been reshuffled. The constitution has no power of administrative superintendence in the Supreme Court over the High Courts. But in reality, it indeed is so. When Chief Justices are moved around so fast, and when they are accorded tenures lasting a matter of months, at best, it is impossible for them to make any lasting changes.
• EXAM QUESTIONS: (1) Explain the various aspects of the tough task of ensuring independence of the Indian judiciary. (2) What is the Collegium system? How does it operate? Explain. (3) What was the solution proposed by Dr Ambedkar insofar as ensuring judicial independence was concerned? Explain.

Read more on - Polity | Economy | Schemes | S&T | Environment

#SupremeCourt #Collegium #HighCourts #Ambedkar

Join UPSC Self Prep course | Online Course (PT Gurukul)  | Covid Special Course | Join PT courses

* Content sourced from free internet sources (publications, PIB site, international sites, etc.). Take your own subscriptions. Copyrights acknowledged.