(Indian Polity) THE JUDICIARY - Collegium System and Role of Chief Justice of India in the Appointment of Judges


Collegium System and Role of Chief Justice of India in the Appointment of Judges

Article 124 (2) provides that the President will Consult Such Judges of the Supreme Court and of the High Courts in the Status as the President may deem necessary. In Case of appointment of a judge Other than Chief Justice, the Chief Justice of India will always be consulted. The President will act on the advice of the Council of Ministers. According to this provision, the executive, headed by the President-on the advice of the Council of Ministers was given the authority for appointment of Judges, While the Chief Justice and Other Judges of the Supreme Courts were only to be Consulted. In the First Judges Case, [S.P. Gupta vs. Union of India, 1981] the Court held that Consultation does not mean Concurrence. It meant that the opinion of the Chief Justice of India is not binding on the President. But in the Second Judges Case, [Supreme Court Advocates-on-Record Association vs. Union of India. (1993)] the Supreme Court held that the no appointment of a judge of the Supreme Court of High Court Can be made unless it is in given primacy. In this process, the Chief Justice of India.

Thus Chief Justice’s opinion was given primacy. In this Process, the Chief Justice would take into account the views of two of his senior most Colleagues. By this judgment, the Supreme Court overruled its earlier judgment in First Judges Case. It changed the meaning of the Word Consultation to Concurrence. The executive lost its final say in the appointment of higher judiciary. The Court ruled that the process of appointment of judges is an “integrated, participatory, Consultative” exercise for selecting the best and most suitable persons available. The Chief Justice of India is the Sole authority to initiate the Proposal for the appointment of Purported to preserve the independence of Judiciary.

In the Third Judges case, 1998, after a presidential Reference, it was decided that in regard to the appointment of the Supreme Court Judges, the Chief Justice of India Should Consult a Collegium of four senior most Judges of the Apex Court. Even if two judges give an adverse opinion, the make the decision in Consensus. Thus, the primacy given to the opinion of Chief Justice of opinion of the Chief Justice of India does not constitute the Consultation process. The Consultation process requires Consultation of Plurality of Judges. The transfer of Puisne Judges of High Court was Judicially reviewable, Only if the Chief Justice of India had recommended the transfers without consulting four senior most judges, the Chief Justice of India was obliged to Consult the Chief Justice of the two Concerned High Courts. (One from which the Judge was transferred and the other receiving him).

Criticism of Collegium System

As the matters of appointment of judges for the Supreme Court and High Courts and transferring them from one high Court to another were taken by the judiciary Completely in its hand, it deprived the executive-elected by the people, of any say in the matter. It is against the principles of representative democracy. In no Constitutional democracy of the World the judiciary has the power to appoint itself, Secondly the increasing allegations of Corruption against the higher Judiciary put Selection Procedure of Judges in Question box. Thirdly, administrative task of such magnitude must necessarily detract the judges of the Collegium from their principal judicial work of hearing and deciding cases. The Collegium neither has a secretariat to Shoulder this burden nor an intelligence bureau to make appropriate inquires of the competence, Character and integrity of a proposed appointee. Fourthly, the collegium’s deliberations are secret, the system is opaque and the choice of a judge is only known when his name is forwarded to the Government for formal appointment.

The parliamentary Standing Committee on Law and justice has said: “The present process adopted by the Collegium of judges is beset with its own problem of opacity and non-accountability besides excluding the Executive entirely in the Collaborative and Consultative exercise for appointment of judges to a Bench of the higher judiciary. Because of its inherent deficiencies in the Collegium, as many as 275 posts of judges in Various High Courts are lying vacant, which has a direct bearing on the justice delivery system and there by affecting the Judiciary.”

Judicial Appointments Commission Bill, 2014

The parliament has initiated The Constitution (121st Amendment) Bill, 2014, which provides for setting up of a Judicial Appointments Commission, by inserting Article 124 (A) in the Constitution and amending Articles 124 (2), 217 (1) and 222 (1), to replace the present Collegium system. The Proposed Judicial Appointments Commission (JAC) for appointment and transfer of Judges to the higher Judiciary. The Jac Bill seeks to set up a six-member body under the Chairman ship of the Chief Justice of India with equal Participation of judiciary and Executive to ensure that the appointments to the higher Judiciary are more participatory, transparent and objective.

Establishment and Composition of Commission

A. The Commission shall be chaired by the Chief Justice of India (CJI) and Shall Comprise of two other senior most judges of the Supreme Court, the Union Minister for law and Justice and two eminent persons to be nominated by a panel.
B. The panel comprises the Prime Minister, the CJI and Leader of Opposition of the Lok Sabha. The eminent members will retain membership for a three year period and are not eligible for re-nomination.
C. The Secretary to the Government of India in the Department of Justice Shall be the convener of the Commission.

Functions of Commission

The Commission seeks to perform functions that relate to appointment, transfer and quality of Candidates. Those include:
A. recommending persons for appointment as Chief Justice of India; Judges of the Supreme Court, Chief Justices of High Courts and other judges of High Courts;
B. recommending or transfer Chief Justices of High Courts and the judges of High Courts, from One High Court to any other High Court.
C. ensuring that the person recommended is of ability, integrity and standing in the legal profession.

The Judicial Standards and Accountability Bill, 2010 was introduced in the Lok Sabha in 2010. The Bill has been passed by the Lok Sabha and is pending before the Rajya Sabha. The Judicial Standards and Accountability Bill try to lay down enforceable Standards of Conduct for Judges. It also requires judges to declare details of their and their family members’ assets and liabilities. Importantly, it Creates mechanisms to allow any person to Complain against judges on grounds of misbehavior or incapacity. It also provides a mechanism for the removal of judges.

The Bill requires judges to practice university accepted values of judicial life. These include a prohibition on; (a) close association with individual members of the Bar who practice in the same Court as the Judge, (b) allowing family members who are members of the Bar to use the judge’s residence for professional work, (c) hearing or deciding matters in which a member of the judge’s family or relative or friend is Concerned, (d) entering into public debate on political matters or matters, which the judge is likely to decide, and (e) engaging in trade or business and speculation in Securities. Judges will also be required to declare their assets and liabilities, and liabilities of the judge will be displayed on the Website of the court to which the belongs. The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation Committee. Any person can make a Complaint against a judge to the Oversight Committee on grounds of ‘misbehaviour’.

A motion for removal of a judge on grounds of misbehavior Can also be moved in Parliament. Such a motion will be referred for further inquiry to the Oversight Committee. Complaints and inquires against judges will be Confidential and frivolous Complaints will be penalized. The Procedure or removal of judges is presently regulated by the Judges (Inquiry) Act, 1968. The Bill seeks to repeal the Act.


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