Appointment of Judges in High Court and Supreme Court: A National Debate

The appointment of judges in India's High Courts and Supreme Court has been a controversial issue since independence. Several attempts have been made to establish a robust system. In 1993, the Collegium system was introduced but was not without flaws. It underwent numerous changes over the years. In 2014, the government introduced the National Judicial Appointments Commission (NJAC) as an alternative to the Collegium system, but it was struck down by the judiciary. This led to a tussle between the government and the judiciary. Judicial appointments are critical to maintaining an independent judiciary, which includes discussions on the Collegium system, its evolution, advantages, disadvantages, and controversies.

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Introduction

The Collegium system governs the appointment and transfer of judges in the Supreme Court and High Courts. It is not rooted in the Constitution but evolved through Supreme Court judgments.

• Supreme Court Collegium: Headed by the Chief Justice of India (CJI) and four senior-most Supreme Court judges.
• High Court Collegium: Led by the Chief Justice of the High Court and two senior-most judges.

The government can raise objections or seek clarifications about the Collegium's recommendations, but it must accept them if the Collegium reiterates its decision.

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Procedure for Appointment of Judges

Chief Justice of India

• The President appoints the CJI based on the recommendation of the outgoing CJI.
• Seniority is strictly followed to avoid controversies.

Supreme Court Judges

• The CJI initiates the process in consultation with the Collegium members and the senior-most judge from the High Court to which the candidate belongs.
• Recommendations are forwarded to the Law Minister, who sends them to the Prime Minister for presidential approval.

Chief Justice of High Courts

• Chief Justices are appointed from outside the respective states for impartiality.
• The High Court Collegium recommends candidates, and the Chief Minister advises the Governor to send the proposal to the Union Law Minister.

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Criticism of the Collegium System

1. Lack of Transparency: Decisions and their justifications are not disclosed to the public.
2. Judicial Vacancies: Persistent vacancies contribute to delays and backlogs in cases.
3. Nepotism: Allegations of favoritism undermine merit-based selections.
4. Violation of Checks and Balances: Excludes the executive, leading to reduced accountability.
5. Gender Representation: Fails to ensure adequate representation of women in the judiciary.
6. Opaque Transfers: Transfers of judges lack clarity, raising concerns about judicial independence.

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Efforts to Improve the Appointment Process

99th Constitutional Amendment Act, 2014

• Proposed the NJAC to replace the Collegium system.
• Struck down by the Supreme Court as unconstitutional.

Memorandum of Procedure (MoP)

• Details the process for judicial appointments, framed by the government and judiciary.
• Revised in 2017 to enhance transparency, but not adopted due to disagreements.

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Comparison with Other Countries

United Kingdom

• The Judicial Appointments Commission oversees judge selection, involving a mix of legal professionals and laypersons.

South Africa

• The Judicial Service Commission advises the President, including members from the judiciary, legal professionals, and political representatives.

France

• Judicial independence is safeguarded by the President but appointments involve the High Council of the Judiciary or the Minister of Justice for lower courts.

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Conclusion

The Collegium system faces significant challenges, including delays, lack of transparency, and biases, which undermine public trust and the judiciary's efficiency. A reformed approach, possibly reviving the NJAC with appropriate safeguards for judicial independence, is crucial. Incorporating clear, merit-based criteria, diversity, regional representation, and public engagement will ensure accountability and strengthen the rule of law in India.

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