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Explained: How judges are appointed and why there is a fresh debate around it

Owing to the long process involved in the appointment of judges, the delays and latches cannot be affixed to any one of the bodies involved in the mechanism.

December 28, 2021 / 07:10 PM IST
Representative image

Representative image

The process of appointment of judges is once again under the spotlight. This time the debate was ignited by John Brittas, a Rajya Sabha member representing the Communist Party of India (Marxist). In his maiden speech in the Upper House during the winter session, he criticised the manner in which judges were appointed and the lack of diversity in the judiciary and cited instances of nepotism in judicial appointments.

Other parliamentarians have also demanded a change in the manner in which judges are appointed and have said the collegium system needs to be revisited. Law Minister Kiren Rijiju also told the parliament that there were calls from several quarters to bring transparency in judges’ appointment process.

Chief Justice of India NV Ramana countered most of these claims while delivering a lecture in Vijaywada over the weekend. He said that it was a “myth” that judges appoint themselves and clarified that several other authorities including the Law Ministry and the intelligence bureau were involved in the process. “It is nowadays fashionable to reiterate phrases such as, ‘judges are themselves appointing judges’,” he stated, adding that such narrative “suits certain sections”.

Here, Moneycontrol tries to demystify the judicial appointment process.

What is the collegium system?

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The collegium system came into practice in 1998 for the appointment of judges wherein a body comprising the five senior-most judges of the Supreme Court, including and headed by the Chief Justice of India, would consider suitable names for appointment or elevation as Supreme Court judges. The pool of names to be considered include judges from high courts, and practising senior members of the Supreme Court bar. The seniority of serving high court judges plays an important factor while being considered for elevation from the high courts to the apex court.

While considering appointments or transfer of judges among the various high courts, the three senior-most judges of the Supreme Court constitute this collegium.

High courts too have their collegia, having a similar framework as that of the Supreme Court and serve the purpose of making recommendations of suitable names for appointments and elevations to their respective high courts. Their recommendations are sent to the Supreme Court collegium for its deliberation and final word.

Where does the government figure in the appointment process?

As the system stands today, the collegium, after carrying out its due deliberations behind closed doors, makes recommendations for appointments and transfers to the Union Law Ministry. The recommendations are sent by the ministry to the intelligence bureau for background vetting following which the ministry’s response on the recommended names is informed to the collegium.

The Law ministry may clear the names or urge the collegium to reconsider the recommendation based on the IB inputs. Cleared names receive the president’s assent and the appointment or transfer, as the case may be, is then notified in the official gazette giving the process finality.

In the event a name is sent back by the ministry for its reconsideration, the collegium may consider it again. If the collegium reiterates its recommendation, the protocol has it that the candidature is then cleared.

As for the consultation from the executive head, it is the president who signs off on all appointments; however, the governor of a state is consulted when the appointment of a chief justice to a high court is under consideration.

Who is responsible for delays in appointments?

The higher judiciary in India has a large number of vacancies – an aspect that is often viewed as one of the factors behind the large pendency of cases in these courts. As of December 1, across the 25 high courts in India, as many as 402 posts of judges – permanent and additional – remain vacant as against the sanctioned number of 1098, according to data published by the department of justice.

Owing to the long process involved in the appointment of judges, the delays and latches cannot be affixed to any one of the bodies involved in the mechanism.

Judges of the Supreme Court, especially those who have been part of the collegium have often voiced out their concern over timely completion of the appointment process urging the government bodies to respond to collegium’s recommendations in a timely fashion. On the other hand, the collegium also, at times, faces criticism for holding a lower number of meetings than required at the time for deliberations on recommendations.

No fixed timeframe is followed by any of the players involved in the appointment process thereby making the final completion of an appointment uncertain in terms of the duration the process may take.

Why is the collegium process being criticised?

The collegium process is criticised mainly on grounds of lack of transparency. Prior to 2018, collegium recommendations were not made available in the public domain. This practice changed under the tenure of the then Chief Justice of India Dipak Misra who facilitated the publishing of collegium resolutions on the Supreme Court’s website. This move was appreciated for being a step in the direction of making the process more transparent.

The grounds for deliberations carried out on proposed candidates by the collegium remains to be a mystery and as such, in the absence of reasons and rationale behind rejecting or accepting a name for recommendation, the process is called opaque and undemocratic.

Proponents of the collegium system, however, argue that deliberations made by all the members of the collegium ensure there is democracy and plurality of thoughts in the process while making sure that the judiciary remains independent of the executive and the ruling dispensation of the day while taking decisions on this crucial aspect.

Is there a viable alternative method for judicial appointments?

No discussion around the collegium and appointment of judges in India is truly complete without the mention of the National Judicial Appointment Commission. The NJAC was brought in in 2014 through a constitutional amendment and the passage of the NJAC Act and the same came into force in April 2015. The NJAC would have been a body comprising three senior-most judges of the Supreme Court, the Union Law Minister, and two eminent persons appointed by the chief justice of India, prime minister, and leader of Opposition in the Lok Sabha.

The new system which would replace the collegium system soon faced a legal challenge before the Supreme Court and within months of the NJAC coming into force, it was struck down as unconstitutional by a 4:1 majority by a constitution bench of the apex court.

Even today, the legal fraternity, as well as retired judges, remain sharply divided on a mechanism such as the NJAC. Some view a commission of that nature as a blow on judicial independence – a principle at the heart of striking down the system by the Supreme Court. Those batting for another NJAC-like system to replace the collegium cite the need for transparency, representation, and diversity in the process of appointing judges.

Regardless of which system one favours, it is safe to say that a large section is strongly batting for a rejig in the way the judges are appointed.
Shruti Mahajan
first published: Dec 28, 2021 07:10 pm
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