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Judicial Appointment In India
Context:
The Supreme Court has instructed the Himachal Pradesh High Court collegium to reconsider the elevation of two judicial officers it recommended 21 months ago, stressing the importance of timely judicial appointments.
More on News:
- SC Reconsideration Directive: SC directed the Himachal Pradesh HC collegium to reconsider the names of two judicial officers, Chirag Bhanu Singh and Arvind Malhotra, recommended for elevation 21 months ago.
- Petition by Officers: Singh and Malhotra argued that their seniority was overlooked in favor of two other officers recommended earlier this year.
- SC Ruling: SC ruled that the HC Chief Justice’s individual communication with the SC collegium did not qualify as “effective consultation.” Emphasised the need for collective consultation among the three seniormost HC judges.
Collegium System of Judicial Appointments:
- System Overview: The collegium system, created through Supreme Court rulings, involves the Chief Justice of India (CJI) and senior SC judges consulting with HC collegiums for appointments.
- Government’s Role: Limited to background checks; cannot reject recommendations but can delay or seek clarifications.
- HC Collegium: Headed by the HC Chief Justice and includes the two seniormost HC judges.
Himachal Pradesh Case and Its Implications:
- Initial Recommendation: The HC collegium recommended Singh and Malhotra in 2022, but the SC collegium requested reconsideration.
- Officers’ Grievance: Singh and Malhotra petitioned SC, citing their seniority was not respected.
- SC Emphasis: The SC highlighted that judicial appointments must reflect collective wisdom to ensure transparency and accountability.
Criticism of the Collegium System:
- Lack of Transparency: No official mechanism, secretariat, or criteria for selection, making the process opaque.
- Nepotism Allegations: Criticism for possible favouritism and the slow pace of judicial appointments.
- Judicial-Executive Tensions: The system is seen as fostering tensions between the judiciary and executive, particularly due to delays in appointments.
Constitutional Provisions on Judicial Appointments:
- Supreme Court (Article 124): SC judges are appointed by the President after consultation with necessary SC and HC judges.
- High Court (Article 217): HC judges are appointed by the President after consultation with the CJI, the HC Chief Justice, and the state’s Governor.
- Article 50: Calls for separation of judiciary from executive functions in public service.
Evolution of the Collegium System:
- First Judges Case (SP Gupta Case-1981): SC ruled against the primacy of the CJI in appointments, favouring executive control.
- Second Judges Case (Advocate-on-Record Case-1993): Established the collegium system, restoring the judiciary’s primacy in appointments.
- Third Judges Case (Special Reference-1998): Expanded the collegium to a five-member body for appointments.
- Fourth Judges Case (2015): Struck down the NJAC, reasserting the collegium’s role in maintaining judicial independence.
Comparison with Judicial Appointment Systems in Other Countries:
- U.S. System: The President nominates judges, and the Senate confirms them.
- UK System: An independent Judicial Appointments Commission shortlists candidates.
- France & Germany: Judicial appointments involve both executive and judicial bodies, ensuring checks and balances.
Way Forward for Reforms:
- Need for Change: Reforms are needed to improve transparency in the collegium system while preserving judicial independence.
- Suggestive Body: A retired judges’ body could be constituted to monitor appointments without infringing on judicial independence.
- Eminent jurist Fali S Nariman, in his book “Before Memory Fades,” recommended abolishing such bodies as elite groups that don’t hold sacrosanct knowledge.