Criteria for the courts (What kind of judges do we need in India)

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Criteria for the courts (What kind of judges do we need in India)

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• Indira Gandhi's committed judiciary: A minister named S Mohan Kumaramangalam defended Indira Gandhi's moves to appoint only certain judges (of a certain disposition) to the higher judiciary, saying the government must assess a judge's broad outlook on matters of the State before appointing him to the SC.
• Good, or bad: On the face of it, some may find it a reasonable move. But as jurist Nani Palkhiwala warned, it was just to build a judiciary "made to measure" that would accommodate the government always!
• What about today? The Collegium's minutes are not available for discussions in public domain. We do not know anything about the constitutional beliefs of any judge that's elevated to the SC.
• No hit on judicial autonomy: To try and find out a judge's outlook on the Constitution is not akin to harming judicial autonomy. The motive matters.
• Not elected but appointed: Since judges are not elected representatives, it may not be a wrong idea to find out a judge's leanings while appointing. Democratic accountability in appointments is not a bad idea.
• Constituent Assembly's thoughts: It was clear that an independent judiciary was crucial to the social revolution that the Constitution was trying to bring. Many special clauses were made for that -

1. A fixed tenure for judges of SC and HCs
2. Salaries charged directly to the Consolidated Fund of India
3. Powers to punish for contempt of themselves
4. Only parliamentary impeachment can remove judges.
5. But after all these, the power to appoint was vested with the Executive only!

• Appointment process: The President in consultation with the CJI will appoint judges to the Supreme Court, etc. That all changed through a series of rulings (The Three Judges‘ case). New process was brought - the CJI and 4 senior-most colleagues (the "Collegium") will decide.
• Opaque, hence NJAC: Since the Collegium was an opaque institution, the National Judicial Appointments Commission was brought in through the 99th amendment, promptly struck down by in 2015 by the S.C. in the SC Advocates-on-record Association versus Union of India. The primacy of Collegium was declared as part of "Basic Structure" of constitution.
• Latest 2018 appointments: The four elevations to the S.C. have been done on the basis of regional representation and seniority, but nothing is mentioned about merit.
• Mysterious and undemocratic: The Collegium is not open and democratic, and the govt. is not unhappy! The recommendations are often cleared, and some held up for a long time for no reason.
• Detailed discussion needed: Collegium needs to be replaced by another body, independent of the Executive, but subject to greater transparency and accountability. In the long run, public's trust in Judiciary will be sustained only through openness, not opacity.
• Summary - We need a democratic, transparent and accountable system of appointing judges to the higher judiciary, and the present Collegium system does not fit the bill.
  

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