JUDICIAL ACCOUNTABILITY - NEED TO REBUILD/ REPLACE COLLEGIUM SYSTEM
Let's start with understanding the collegium system in Indian Judiciary
What is the collegium system?
It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
Role of the central government:
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The government's role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court. It can also raise objections and seek clarifications regarding the collegium's choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
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What does the Constitution say regarding the appointments of judges? - #Important
Under Article 124(2), Judges of the Supreme Court and under Article 217 High Courts are appointed by the President and Governor respectively and retirement age of Supreme court judges are 65 years and for High Courts, it is 62 years.
The President is required to hold consultations with such of the judges of the Supreme Court and of the High Courts as he may deem necessary.
When it comes to the procedure of the appointment of the Judges of the Higher Judiciary (both High Courts and Supreme court) Constitution is silent on it.
So how did collegium evolve!!
The collegium came into being through interpretations of pertinent constitutional provisions by the Supreme Court in the Judges Cases.
History of the collegium system
Has its genesis in Three judges cases.
1st S.P.Gupta V. Union of India 1982 (judges transfer case, established practice prevailed for 12 years)
Primacy was not accorded to CJI, he is just another SC judge
2nd judges case Advocate on record association. Vs UOI 1993
The actual term "collegium system" was used for the 1st time.
9 judges bench overruled the earlier decision of the SP Gupta case
Devise a specific procedure
The primacy of CJI is accorded, the executive cannot have an equal say in the matter.
Ushering in the collegium system, the court said that the recommendation should be made by the CJI in consultation with his two senior-most colleagues and that such recommendation should normally be given effect by the executive
The executive is bound by the bench verdict if the proposed name is recommended again.
3rd Judges case -1998, President K R Narayanan
Not actually a case, Presidential reference under his discretionary power / Advisory Jurisdiction.
Over the term "consultation"
Consultation with other judges or the sole opinion of the CJI is enough
In response, the Present collegium system was shaped- Consultation req. CJI+ 4 other senior-most judges
Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted.
The primacy of CJI is curbed.
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Criticism of Collegium system
Non-transparent
Close door affair
No standard prescribed norms regarding eligibility and transfer criteria
No Public knowledge of when and how the collegium meets.
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NJAC - 99th amendment act - quashed by SC 4:1 #Repealed
Curbing the independence of the judiciary
The executive has a decisive say in the appointment and transfer of the higher judiciary
Govt. is one of the parties in many cases.
The Bench sealed the fate of the proposed system with a 4:1 majority verdict that held that judges' appointments shall continue to be made by the collegium system in which the CJI will have "the last word".
Memorandum of procedure for the future appointment and transfers
To address the concern of the eligibility and transparency
The court asks the govt. to draft a MOP with the consultation of CJI
Still to be finalised owing lack of consensus among the judiciary and the executive.
Present Situation
Since no MOP, so govt. is delaying the appointment of judges to the higher judiciary.
An instance of failure of the collegium system.
Justice Karnan’s appointment as a judge was a classic example of how the system has failed.
On October 3, the Supreme Court’s collegium published a resolution promising to hereafter make public, on the court’s website, its various decisions, including its verdicts on persons nominated for elevation as judges to the high courts, its choices of candidates for elevation to the Supreme Court, and its decisions on transfer of judges between different high courts. These results, the resolution added, will be accompanied by the reasons underpinning the collegium’s choices.
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