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Home / UPSC Editorials / Reforming the Process of Judicial Appointments

Reforming the Process of Judicial Appointments & More | UPSC Editorials

Last Updated on Sep 23, 2024
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There are debates in colleges, universities and academia over India's judicial appointment system which are mainly governed by the Constitution under Articles 124(2) and 217(1). It has highlighted the issues with the present day collegium system, such as lack of transparency and accountability of institutions as well as judges. There can be no holy cow in a democracy and thus the judiciary cannot be an exception and it needs to be accountable to supreme law of the land i.e Constitution of India. In this, there is a need to take a series of judicial reforms like National Judicial Appointments Commission (NJAC) so that the process of judicial appointments can be streamlined.

The National Judicial Appointments Commission (NJAC), was a step taken to bring judicial reforms in the entire judicial appointment process through a multi-stakeholder approach, was struck down by the Supreme Court in 2015 by the majority of 4:1. As compared to other countries that use diverse commissions that include domain experts, professors, politicians, bureaucrats etc for judicial appointments, a reformed National Judicial Appointments Commission (NJAC) could improve transparency and efficiency, addressing delays in justice delivery and enhancing public confidence in the judiciary. 

Read more about Transparency in Administration!

Analysis Based On

Article published in The Hindu on reforming the process of judicial appointments in India

Topics for Prelims

Judiciary, Independence of Judiciary, Integrated Judiciary, President, Governor, Constitution & its Provisions, Appointments in Constitutional Offices, Judicial Reforms, History of Judiciary in India, Organs of Government

Topics for Mains

Separation of Power, President, Governor, Rule of Law, Independence of Judiciary, Doctrine of Basic Structure, Accountability, 

Evolution of the Collegium System in India

The judicial system in India has a rich history. In India, the justice system has always found a better place be it in the ancient time period or in the colonial period. Post independence, it has evolved through different landmark cases. These are the following ways in which judicial system in India has evolved over the years:

  • First Judges Case (1982): The Supreme Court in the famous S.P. Gupta vs. Union of India, 1981 Case ruled that the word "consultation" with the Chief Justice of India (CJI) in the constitution did not equate to "concurrence." This led to reduction in CJI’s primacy in judicial appointments. This practice was in place for almost 12 years i.e till 1993. 
  • Second Judges Case (1993): The Supreme Court of India in Supreme Court Advocates-on-Record Association vs. Union of India, 1993 overruled its own judgment given in the First Judges Case by a 7:2 majority. The Supreme Court in this case held that "consultation" mentioned in the constitution of India means "concurrence," granting the primary role in judicial appointments to the Chief Justice of India (CJI) and senior-most judges. This judgment in a nutshell, formalized the collegium system where the Cheif Justice of India (CJI) and senior judges collectively decide on appointments. 
  • Third Judges Case (1998): This was a Presidential reference case, here the Supreme Court reaffirmed the decision it gave in Advocates-on-Record Association vs. Union of India, 1993 or Second Judges Case. The Supreme Court in this case held that judicial appointments should be made by the Chief Justice of India (CJI) in consultation with the four senior-most Supreme Court judges. This ruling in a nutshell solidified the present day collegium system, making the collective opinion of the Chief Justice of India (CJI) and senior judges binding on the government. 
  • Memorandum of Procedure (MoP): This was drafted by the Ministry of Law and Justice as per the Supreme Court's directives in the Second and Third Judges Cases. This memorandum outlines the process for appointing judges in Supreme Court and High Courts. 
  • National Judicial Appointments Commission (NJAC): NJAC was proposed by the National Commission to Review the Working of the Indian Constitution (2002). Government tried to make the judicial appointment process more transparent and accountable. This was brought to involve the Chief Justice of India, two senior Supreme Court judges, the Union Law Minister, and two eminent persons in judicial appointments. Unfortunately, this Constitutional Amendment Act was declared ultra vires to the constitution by the Supreme Court in 2015.

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Status of Judicial Pendency in India

As of June 2024, there are more than 80,000 open cases pending in the Supreme Court. Also, high courts have judicial pendency of more than 61.7 lakh cases. The condition of the lower judiciary is more worrying as it has more than 4.5 crore cases pending before them. It is more concerning that the government is the largest litigant, accounting for 50% of the total pending cases. Cases related to land and property disputes are the most frequent type of pending cases. 

Arguments in Favour of the Collegium System in India

These are the following arguments in favor of collegium system in India:

  • Independence of Judiciary: The Collegium system ensures that judicial appointments are protected from political influence and thus independence of judiciary is maintained viz. A basic feature of the Indian Constitution. 
  • Selection on Merit: Judges, be it Supreme Court or High Court are chosen on merit basis and not just on their academic qualifications.
  • Diversity and Inclusivity: The collegium system promotes diversity, including women and disadvantaged communities, reflecting India's true and real societal diversity.

Read More about NJAC!

Arguments Against the Collegium System in India

These are the following arguments in favor of collegium system in India:

  • Transparency: The collegium system is very opaque and its decision-making process and criteria in selecting and recommending names of judges undermines public trust and does not undergo public scrutiny.
  • Nepotism: The opaqueness in selection and recommendation by the collegium system has created trust deficit in India and it is alleged that judges appoint judges with a motive of ‘I scratch your back, you scratch mine.’
  • Lack of Diversity: The present day collegium system has not effectively ensured diverse representation in terms of gender, caste, and region, potentially leading to an unrepresentative judiciary. There are very few judges from Scheduled Caste (SC), Scheduled Tribe (ST) , Minority community especially in the Supreme Court.

Measures to Reform Judicial Appointments and Collegium System in India

Credibility of the present day system of judicial appointments and collegium system is not in a good shape. Thus, there is a need to bring necessary reforms in the process of judicial appointments in India. These are some of the measures to reform judicial appointments and the Collegium system in India:

  • Promoting Transparency and Accountability: It's necessary to Implement clear guidelines and procedures for appointments. Cultivate more public dialogue, debate and discussion on the issue.
  • Balanced Role for the Executive: It would be better if the role of executive in the appointment process while maintaining judicial independence is increased. There is a dire need to revisit the NJAC or devise a similar mechanism or body with representatives from the judiciary, executive, NGOs or civil society to strike a balance between independence and accountability. 
  • Merit-Based Appointments: It is necessary to strictly adhere to merit-based criteria while making appointments.
  • Timeline: There is a need to establish strict timelines for the Collegium process so that delays do not occur as there is already a huge number of pending cases.
  • Promote Public Consultation and Participation: There is a need to seek public input through consultations and debates on this.

Conclusion

India needs to Reform the present day collegium system to enhance transparency, accountability and address the issues of judicial delays by bringing necessary reforms so that the trust of people in the justice system in India is again restored.

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UPSC Previous Year Questions

Year

Question

2020

The judicial systems in India and UK seem to be converging as well as diverging in recent times. Highlight the key points of convergence and divergence between the two nations in terms of their judicial practices. 

2017

Critically examine the Supreme Court’s judgment on the ‘National Judicial Appointments Commission Act, 2014’ with reference to the appointment of judges of higher judiciary in India.

UPSC Practice Questions

Q1. Starting from inventing the ‘basic structure’ doctrine, the judiciary has played a highly proactive role in ensuring that India develops into a thriving democracy. In light of the statement, evaluate the role played by judicial activism in achieving the ideals of democracy.

Q2. What is the position of the Supreme Court under the Constitution of India? How far does it play its role as the guardian of the Constitution? 

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