Recently, there has been confrontation between the Centre and judiciary on the interpretation of Article 124 (2) and 217 (1) of the Constitution.
Provisions related to the appointment of judges to the supreme court and high court
- Article 124 (2) states that the president will appoint each Supreme Court justice after consulting with the judges (particularly the chief justice) of the Supreme Court and the high courts in the states as necessary.
- Article 217 (1): Similarly, for high courts, Article 217 (1) states that the president will appoint each judge after consulting with the Chief Justice of India, the governor of the state, and the chief justice of the high court.
- Judicial independence and the collegium system: Judicial interpretation in SP Gupta vs Union of India (1981), The Supreme Court Advocates-on-Record Association vs Union of India (Second Judges Case) (1993), and Article 143(1) vs Unknown (Third Judges Opinion) (1998) has further evolved the principle of judicial independence and resulted in the collegium system for recommending judges.
- Central government’s role: Currently, the Centre can accept or reject collegium system recommendations; however, if a recommendation was repeated, the government was required to accept it.
What the ongoing tussle is all about?
- The Centre’s stalling of recommendations reiterated by the Collegium has resulted in a stalemate, despite recently established consensus.
- The Supreme Court chastised the government for failing to adhere to the timelines established in the Second Judges Case.
- The Standing Parliamentary Committee on Law and Personnel has also stated its disagreement with the Department of Justice regarding the inability to specify a timetable for filling vacancies.
Impact of this tussle
- The capacity of India’s judicial system is deteriorating: The net result of this historic struggle between the independent judiciary and the all-powerful Centre has been a decline in India’s judicial system’s capacity.
- Vacancies in the Supreme Court: There were approximately three (of 34) vacancies on the Supreme Court, as well as approximately 381 (of 1,108) vacancies on the high courts.
- In the lower judiciary, approximately 5,342 (of 24,631) seats were vacant, accounting for 20% of its capacity.
- Impact on judicial efficiency: Such vacancies, particularly in the high courts of Bombay, Punjab & Haryana, Calcutta, Patna, and Rajasthan, are unavoidable (with about four crore cases pending, as of August 2022)
A study: Process of appointment of judges in other countries and by political institutions
- In Italy, the president, the legislature, and the Supreme Court make appointments to the Constitutional Court, with each entity allowed to nominate five judges.
- In the United States, Supreme Court justices are nominated (for life) by the president and confirmed by the Senate by a majority vote. The state governor, on the other hand, appoints state judges based on recommendations from a merit commission.
- In Germany, the Parliament (each House gets four appointments in each of the Court Senates) appoints the German Constitutional Court with a supermajority vote (2/3). This, of course, can result in a partisan judiciary.
- All judges in Iraq are graduates of a Judicial Institute, and all applicants must pass written and oral exams, as well as an interview with a panel of judges.
- In Japan, the Supreme Court Secretariat is in charge of lower-level judicial appointments, as well as their training and advancement.
- Judicial elections to improve judiciary accountability: Elections for judicial appointments to state supreme courts have been used to improve judiciary accountability in a number of states in the United States.
- Judicial councils: Judicial councils have been tried in other countries (often comprising of existing judges, representatives of the Ministry of Justice, members of the bar association, laymen etc)
Appointments through Judicial Commission
- Centres press the Judicial Commission: The Centre recently advocated for judicial appointments to be made through a Judicial Commission (National Judicial Appointments Commission Bill, 2014).
- According to the Supreme Court, the collegium system is open to greater transparency: The NJAC Act (2014) was struck down by the Supreme Court with a 4:1 majority, despite the fact that it was open to greater transparency in the collegium system in particular, making the collegium more transparent, fixing eligibility criteria for appointing judges, and debating whether an empowered secretariat was required to appoint judges.
Suggested reforms
- Allow a secretariat to select and recommend candidates: The Collegium system can be maintained; however, a secretariat may be empowered to select and recommend candidates, while the Executive retains the authority to appoint judges.
- Greater representation of our society in the judiciary: The secretariat could be staffed with current judges, bar association members, law ministry representatives, and laymen, and should advocate for greater representation of our society in the judiciary. The Supreme Court had only three women and two SC judges.
- New Appellate Court: Aside from judicial appointments, there is a clear need for a new Court of Appeal (refer PIL by V Vasanthakumar). Because the Supreme Court was never intended to be a regular court of appeal against high court orders (Bihar Legal Society vs Chief Justice of India, 1986), it should not hear bail applications.
- Instead, as recommended by the Law Commission, we need a Federal Court of Appeal with branches in major metropolitan areas.
- Transform the Supreme Court into a Constitutional Court: By transforming the Supreme Court into a Constitutional Court (via a constitutional amendment), fewer cases (about 50, anecdotally) would be kept pending at the highest level.
- Defined retirement age for all judges: There should be a push for a defined retirement age, say 65, for all judges, whether at the high court or Supreme Court level. There should also be a mandatory cooling off period for judges to be nominated to positions in government.
@the-end
Judicial independence remains critical to the health of India’s democracy. To achieve judicial independence, a credible and impartial system of appointing judges is required. Any appointment must ensure judicial accountability, fostering a judiciary that is independent of other branches of government on an individual and systemic level.