The Judiciary is arguably the most important organ of any country. The mechanisms for judicial appointment play an important role in selecting the persons who would constitute and ensure the efficiency of this organ. This article deals with the methods of appointment of judges in India, in context with Kiren Rijiju’s recent comments at Lok Sabha.
What is the Collegium System?
The collegium system in India has been developed through judicial pronouncement. This implies that, unlike other appointment guidelines, the “collegium” system finds no mention in the constitution. Its roots can be found in the recommendations made by the bar council of India in 1981. The recommendation stated that the appointment of the Supreme Court Judges shall be made by the following authorities:
- The Chief Justice of India
- Five senior Judges of the Supreme Court
- Two representatives representing the Bar Council of India and the Supreme Court Bar Association.
The recommendation of such a Collegium system shall be binding on the President though he can request reconsideration on certain grounds.
Later on, on 30 December 1981, Bhagwati Judge of the Supreme Court focused on the necessity of establishing a concrete collegium system in India because the concentration of power with the prescient was arbitrary. He emphasized the difference between consultation and consentaneity. He further elaborated that the president’s choice may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations.
Therefore, he considered it unwise to entrust power particularly to make crucial and sensitive appointments, such as judicial appointments, to a single individual (the President) without putting checks and controls on the exercise of such a power. Accordingly, he suggested that:
there must be a Collegium to make recommendations to the President regarding the appointment of a Supreme Court or High Court Judge.
This discussion and amendments were made during the “second judge case” and the” Third Judge Case” and thus the current collegium system was developed. It states the following:
- The Collegium system (also called “Judges- selecting- Judges”) is the system by which the judges are appointed and transferred only by the judges.
- The Supreme Court Collegium is officially headed by the Chief Justice of India (currently NV Ramana) and comprises 4 other senior-most judges of the SC.
- A High Court collegium is headed by its presiding Chief Justice and 4 other senior-most judges of that court. Names recommended for appointment by a High Court collegium reach the government only after approval by the CJI and the Supreme Court collegium.
- The government can request reconsideration of the recommendation issued by the Collegium.
- If the collegium reiterates its recommendation then the government is obliged to appoint the respective person.
Need for the collegium system
The collegium system was brought forth to improve and strengthen the Indian judiciary, which forms the bedrock of democracy. It aimed to bring about transparency in the appointment process. This also makes sure that power isn't concentrated with one high-ranking official, i.e. either the CJI or the President. This is ensured by the formation of a body, whose collective opinion is considered absolute.
How does the collegium system work
- For appointing Chief Justice of India (CJI):
- The President of India appoints the Chief Justice of India and assists in the appointment of other SC judges.
- The outgoing CJI recommends his successor.
- In practice, the recommendation of the new CJI is based on grounds of seniority, ever since the supersession controversy of the 1970s.
- For appointing other SC Judges:
- SC judges are recommended by a Collegium consisting of the CJI, as the head and 4 senior-most judges of SC.
- The Collegium recommends the candidate to the Union Law Minister, who forwards it to the Prime Minister who then advises the President for the final appointment.
- For appointing Chief Justice of High Courts:
- The President appoints the Chief Justice of the High Court in consultation with the CJI and the governor of the respective state.
- The candidate is more often than not, selected from outside the respective state.
- For appointing other HC judges:
- o HC judges are also appointed by the President who consults the HC Collegium (CJ of HC and 4 senior-most HC judges), CJI (consults other SC collegium members), and the Governor of the respective state.
News: Kiren Rijiju’s comments
During the monsoon session, on July 26, Union Law Minister Kiren Rijiju said in the Lok Sabha that the government is committed to reducing judicial vacancies but cannot sign off on recommended names for appointments "blindly". Rijiju emphasized the need for greater scrutiny and vigilance by means of due diligence.
Rijiju elaborated that the government needs to exercise its power to conduct background checks and further disapprove these recommendations if they don't meet the laid grounds.
As mentioned above, the appointment to High Courts and the Supreme Court is done through the collegium method. And under the existing process, the Supreme Court Collegium comprises the five senior-most judges of the apex court and recommends names for appointment as judges. This candidate pool extends to the members of the bar, miscellaneous judicial officers, or judges from other high courts. The recommended names are then sent to the Ministry of Law and Justice, which either approves or sends back names to the collegium for reconsideration based on intelligence inputs. The approved candidates are ultimately appointed by the President. The question in the spotlight is one that pertains to vacancies at constitutional courts and often becomes a matter of discussion especially when the recommendation of certain candidates remains pending for a seemingly indefinite amount of time, awaiting governmental approval. Addressing this issue, Rijiju said that the government is working towards expediting the process while upholding the value and importance of said process.
"If any name has not been cleared from our (government) end, then it is with due reason and not with any intention to suppress anyone," Rijiju said.
The discussion surrounding vacancies in courts came to light when the Family Courts (Amendment) Bill was taken up for discourse in the Lok Sabha. This bill seeks to insert a provision to the law to widen the scope and applicability of the law to the family courts set up specifically in the states of Nagaland and Himachal Pradesh between the years 2008 and 2019 respectively.
The family courts set up in Nagaland and Himachal Pradesh have been functioning without legal authority in the absence of the central government notifying the applicability of the Family Courts Act in these states. The amendment seeks to give legal effect to the jurisdiction of these courts retrospectively to ensure that the cases settled over the years do not face uncertainty.
Debate on this bill sparked off a discussion on the pendency of cases with the opposition leaders highlighting that over 11.4 cases relating to family law remain pending.
Rijiju said that the overall figure of pending cases which is nearing 5 crores is a matter of grave concern.
Conversations of Acute Judge shortages, Transfers of judges, and pending cases have become a new normal. Judicial appointments getting delayed or postponed due to non- finalization of the Judges will eventually throw the judiciary into a spiral. The paradox we’re witnessing right now, is that problem resolvers are becoming the problem makers.
In order to maintain public confidence in the appointment system and to ensure judicial independence, the dispensation of justice smoothly should be achieved.
Further, in order to ensure that the matter of appointment of judges in the superior courts of India is timely and not arbitrary, politically biased judges who are or feel beholden to the appointing authority should be looked into.