• There has been an ongoing confrontation between the Government and the Judiciary regarding the issue of Judicial Appointments (of Judges to Higher Judiciary). The Government has issued concerns regarding the Collegium System, calling it opaque; and the invalidation of the National Judicial Appointments Commission (NJAC) by the Supreme Court in 2015. There has been disagreement between the Government and the Supreme Court regarding the names recommended by the Supreme Court Collegium for appointments of Judges to Higher Judiciary. The Government has reiterated the need for a National Judicial Appointments Commission (NJAC), prompting the Supreme Court to defend the present Collegium system. The friction between two organs of the State does not bode well for the functioning of the democratic set-up. Experts have pointed out benefits and shortcomings with both the systems. In this context, the Government and the Judiciary must resolve the differences amicably and arrive at a system that is a best fit

Current mechanism of Judicial Appointments

• At present, the Judicial Appointments and transfers (Higher Judiciary, Supreme Court and the High Courts) are undertaken through the ‘Collegium System’.
• The Collegium of the Supreme Court is a body of 5-Judge body, headed by the Chief Justice of India. It includes 4 senior-most Judges of the Supreme Court. The Collegium recommends the name of Judges to be appointed to the Court.
• The Government also undertakes background checks of the candidates through its agencies like Intelligence Bureau (IB). The Government may raise objections to the choice and ask for clarification. The Government can return the recommendationsof the Collegium for reconsideration. However, if the recommendations are reiterated, the Government must accept them (SC Judgment).
• The Collegium System has not been mentioned in the Constitution. It has evolved through series of Judgments of the Supreme Court. These Judgments are Gupta & Others v. Union of India, 1981(First Judges Case), Supreme Court Advocates on Record Association Vs. Union of India, 1993 (Second Judges Case) and the In re Special Reference 1 of 1998 (Third Judges Case).

Criticisms against Collegium System

• Constitutional Status: The Collegium is not prescribed in the Constitution. Article 124 mentions consultation, which the SC interpreted as ‘concurrence’in Second Judges Case (1993). During the hearing against the NJAC, the then SC Bar President had argued that the Constituent Assembly had considered a proposal for making Judges’ appointment ‘in concurrence’ with the CJI but had eventually rejected it. The Collegium
• Transparency There is no official procedure for selection or any written manual for functioning of the Collegium. The parameters considered for selection (or rejection) are not available in the public domain.
• Accountability: The selections of Judges by the Judges is considered undemocratic. Judges are not accountable to the people or any other organ of the State (Legislature or Executive). It can add an element of arbitrariness in functioning.
• Criticism by Judges: Many retired Judges have criticized the working of the Collegium, especially the lack of transparency. Several controversial appointments have been made despite objections by the member-Judges of the Collegium.
• No Checks: There are no checks on the process. Nor has there been any review regarding the effectiveness of the process. Critics of the system argue the phenomena of ‘Uncle Judges’ wherein near relatives, kith and kin of sitting Judges are appointed to the higher judiciary leading to nepotism. Law Commissionin its 230^th Report (2012) had recommended that that the Judges, whose kith and kin are practicing in a High Court, should not be appointed in the same High Court. The absence of transparency, accountability and external checks creates space for subjectivity and individual bias in appointments. In some cases, the principle of seniority has been ignored.
• No Reforms: The Supreme Court did not amend the contentious provisions of the NJAC Act or added safeguards to the Act. Instead it struck down the whole Act. The Supreme Court reverted to the old Collegium System. However, the Court did not take any step to address the concerns associated with the Collegium System.
• No Global Equivalent: India is perhaps the only country where Judges appoint other Judges without involvement of any other organ of the State.

National Judicial Appointments Commission (NJAC)

• The Parliament had passed the 99^thConstitutional Amendment Act, 2014 and the National Judicial Appointments Act, 2014 that proposed to create a National Judicial Appointments Commission (NJAC). The NJAC was supposed to be an independent Commission to replace the Collegium System to appoint Judges to the higher Judiciary.
• The Commission would have consisted of 6 members: (a)The Chief Justice of India as the ex-officio Chairperson; (b) Two senior-most Supreme Court Judges as ex-officio members; (c) The Union Minister of Law and Justice as ex-officio member; (d) Two eminent persons from civil society. The eminent persons were to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of Opposition in the Lok Sabha. One of the eminent persons was to be nominated from SC/ST/OBC/minorities or women.
• The NJAC Act prescribed the procedureto be followed by the Commission to appoint judges. The Act empowered any 2 members of the NJAC to veto a recommendation if they did not agree with it.
• In 2015, the Supreme Court had declared the Amendment Act and the NJAC Act as unconstitutional, as it impinged on the independence of theJudiciary and undermined the basic structure of the Constitution

Why not National Judicial Appointments Commission (NJAC)?

• First, the two eminent persons to be part of the NJAC need not have any expertise in Lawor related to the functioning of the Courts. This would created an avenue for the Government to appoint any person to the Commission.
• Second, Certain terms were left unexplained and ambiguous in the Acts e.g., Section 5(1) of the NJAC Act required the NJAC to recommend the senior-most Judge of the Supreme Court as the Chief Justice of India “if he is considered fit to hold the Office”. However the criteria for fitness has not been defined.
• Third, the veto power by any two memberscould have resulted in overriding of the Judicial opinion.
• Fourth, the CJI had no Casting Vote. The NJAC had an even number of 6 members but the Chairperson, the Chief Justice of India, had no casting vote. A casting vote could have been useful in avoiding a deadlock (due to split in the even number of votes).
• Fifth, The Chief Justice and two senior-most judges of every High Court had to nominate persons to the NJAC for appointment as High Court Judges. Simultaneously, the NJAC could also nominate personsfor appointment as High Court Judges. This could have resulted in conflict if the two set of nominees were different.
• Sixth, The NJAC had the power to frame regulationslaying down the criteria of suitability, and the procedure of appointing judges of the SC and the HCs. The Parliament had the power to nullify these regulations, thus giving over-riding powers to the Legislature over Judiciary.

Why Collegium System?

• Checks Interference of the Executive: The system isolates Judiciary from the influence of Executive and Legislature. It ensures independence of the Judiciary. The interference of the Executive manifested during Emergency when several settled conventions were disrupted like appointment of senior-most Judge as the Chief Justice.
• Executive as Main Litigant: The Government is the main litigant in Courts accounting for ~50% of the cases. Prominence to the Executive in appointments may impact impartiality of the Judiciaryin adjudication.
• Expertise: Executive may lack the expertise regarding requirements of a Judge. The Judiciary may be the best ‘judge’ in this regard.
• Safeguarding the Constitution: Excessive Government control over Judiciary will make the Judges vulnerable to external influence. Judicial Independence is absolutely essential to safeguard the Constitution and underlying principles like Right to Life, Right to Privacy etc.

Looking ahead

• Revive NJAC: Many judicial experts, including former Judges contend that NJAC system can be a better alternative than the Collegium system, provided the infirmities in the NJAC Act are rectified. In this context, the NJAC can be revived. All stakeholders like Judiciary, Legislature, Bar Associations should be consultedbefore finalization of any proposal.
• Ensure Smooth Functioning: Till a new system is established, the Government should adhere to the recommendations of the Collegium and make the appointments in a prompt manner. Delay in appointments and needless friction should be avoided.
• Finalize MoP: The Government and Judiciary should cooperate to finalize the Memorandum of Procedure (MoP) regarding judicial appointments. The MoP should have clear guidelineslike transparency, eligibility criteria, mechanism for complaints against candidates etc.
• Bring Transparency: The Judiciary should bring more transparency in the process of appointments. Collegium must disclose the reasons for selection and rejection of a candidate.
• All India Judicial Services (AIJS): Several experts have argued for establishment of All India Judicial Services (AIJS) to improve the quality of judges in the lower Judiciary. This should be consulted and implemented post consensus among all stakeholders.
• Secretariat: Experts recommend that a well-resourced independent secretariat for judicial appointments should be established. There should be a comprehensive candidate database as well. It is necessary to be aware of vacancies in advance in order to facilitate quick judicial appointments.

Summing up

• The system of Judicial Appointments should be improved expeditiously. Judicial vacancy is one of the major reason for judicial pendency. All organs of the State should cooperate with each other with right citizen-centric spirit to ensure smooth functioning. Both the Collegium System and the NJAC have their pros and cons. The Government, the Parliament and the Judiciary should coordinate with each other to design the best possible system for Judicial Appointments.