08 Dec Collegium System
The topic is based on Collegium System. The article talks about how this system impacts Indian Polity and Governance.
Relevance for Prelims: Collegium System, Evolution of this System, Separation of Powers.
Relevance for Mains: Judiciary vs Government, Article 50 of Indian Constitution, Doctrine of Basic Structure, Independence of Judiciary.
Context: The vice president commented on the ongoing heated debate between the Central government and the Supreme Court over the matter of judicial appointments. Referring to the 2015 verdict of the SC which struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment, VP asked how the judiciary could have run down a unanimously passed constitutional provision that reflected “the will of people”.
About Collegium System
The Collegium system is a system of appointment and transfer of judges which has evolved through a series of judgments of the apex court and does not find any mention in the constitution of India. It is considered judicial innovation.
Evolution of the System
- First Judge Case: In 1981, The apex court declared that the primacy of the Chief Justice of India’s recommendation on judicial appointment and transfers can be refused for cogent reasons.
- Second Judges Case: In 1993, The Supreme Court pronounced that consultation means concurrence. The judgment also added that the consultation is not an individual’s opinion of the Chief Justice but institutionalized consultation which is done with two-senior most supreme court judges.
- Third Judges Case: In 1998, on the reference of the President, Supreme Court expanded the collegium body to a 5-member body (comprising a Chief Justice and four-senior most judges of the SC).
- Fourth Judges Case/NJAC Judgment: The top court in 2015 struck down the 99th constitutional amendment act which was supposed to replace the existing collegium system.
Issues associated with Collegium System:
- Checks and Balances: The three organs of the government which work independently keep checks and balances on excessive powers, however, the existing system gives immense power to the judiciary which leaves little room for checks and poses risk for misuse.
- Exclusivity: Many scholars have argued that this system does not have any secretariat where meetings are done in closed rooms without any public knowledge and process of the proposal for alleviation of judges.
- Favoritism and Nepotism: Since there are no fixed criteria for the alleviation or transfer of judges, the scope for misuse of powers has expanded giving way to nepotism and favoritism.
About National Judicial Appointment Commission
In August 2014, Parliament passed the Constitution (99th Amendment) Act, along with the National Judicial Appointments Commission (NJAC) Act, which together provide d for the creation of an independent commission to appoint judges to the Supreme Court (SC) and High Courts (HC).
This commission was to replace the collegium system
The two Bills were ratified by the required number of State Legislatures and got the President’s assent on December 31, 2014. Articles 124 and 217 of the Constitution deal with the appointment of judges to the SC and HCs of the country.
Appointment of Judges
Article 124(2) states “every Judge of the Supreme Court shall be appointed by the President” after “consultation” with the judges of the SC and the HCs. So, while the collegium system itself does not figure in the Constitution, its legal basis is found in three SC judgments — usually referred to as the ‘Judges Cases’.
New Articles introduced
- Article 124A created the NJAC, a constitutional body to replace this system,
- Article 124B which conferred the NJAC with the power to make appointments to Courts and,
- Article 124C accorded express authority to Parliament to make laws regulating the manner of the NJAC’s functioning.
Under the NJAC Act, the Chief Justice of India and Chief Justices of the HCs were to be recommended by the NJAC on seniority while SC and HC judges were to be recommended based on ability, merit, and “other criteria specified in the regulations”.
Notably, the Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it. In the system, seniormost judges make appointments to the higher judiciary.
Supreme Court’s Move
- In 2015, Supreme Court Advocates-on-Record Association (SCAORA) filed a petition challenging NJAC citing a violation of the separation of powers (Article 50 of the Indian Constitution) and the doctrine of basic structure.
- In a 4:1 judgment, the apex court held that “NJAC” was unconstitutional given that it violates the basic structure of the constitution and the proposed NJAC is not well even with the collegium system and the time is ripe for improvement of the system of judicial appointments.
This is a time to revisit the system either through presidential reference to the Supreme Court or constitutional amendment with appropriate changes in original NJAC law.
There should be an institutional basis for considering names from the Supreme Court bar, rather than considering them on an ad-hoc basis.
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