DELAY AS TACTIC: ON THE CENTRE AND COLLEGIUM RELATIONSHIP

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THE CONTEXT: The Centre has assured the Supreme Court regarding the appointment of Justice Siddharth Mridul as Chief Justice of the Manipur High Court. Along with that, the Centre has forwarded as many as 70 names approved by constitutional authorities in various States for appointment as judges of High Courts showing respect to Supreme Court Collegium’s recommendations.

MORE ON THE NEWS

• Delay in appointment: The delay in notifying the appointment of Justice Mridul was creating concerns as his name was recommended by the Collegium in July 2023 and was pending since then.
• Delay in transfer: The Collegium has also discussed the transfer of Justice M.V. Muralidaran, now Acting CJ in Manipur to the Calcutta High Court. Centre is seemed to have delaying his transfer. His recent order of inclusion of the Meitei community in the Scheduled Tribes category is seen as the trigger for the ethnic violence in Manipur.

JUDGES APPOINTMENT: EVOLUTION OF COLLEGIUM SYSTEM

• While the Collegium system finds no mention in the Constitution of India, it has evolved through the Supreme Court’s own three judgments, known collectively as the Three Judges Cases (1981, 1993 and 1998). Collegium was the result of the differences between the executive and the judiciary.
• Since 1993, through Collegium system the Supreme Court decides on appointments and transfers of judges in the higher judiciary, though the nominal appointing authority is the President of India.

Can the Collegium system be replaced?

• Replacing the Collegium system calls for a Constitutional Amendment Bill; it requires a majority of not less than two-thirds of MPs (Members of Parliament) present and voting in Lok Sabha as well as Rajya Sabha.
• It also needs the ratification of legislatures of not less than one-half of the states.

PROCEDURE FOR APPOINTMENT OF JUDGES:

• The appointment of judges to the Supreme Court of India and high courts is provided for in Article 124(2)4 and Article 217(1)5 of the Constitution, respectively.
• Article 124 (2) of the Constitution lays down the process to appoint judges to the higher judiciary. It states every Judge of the Supreme Court shall be appointed by the President after consultation with such of the judges of the Supreme Court and of the high courts in the states as the President may deem necessary for the purpose. In the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
• Under the Collegium system, the Chief Justice of India and his 4 senior-most colleagues make recommendations for the candidates to be appointed as SC and HC judges to the President.
• The recommendations by the Collegium for the Supreme Court can be of two types:

1. 1. One, when high court judges are to be elevated to the Supreme Court
   2. Two, when senior lawyers are directly appointed as Supreme Court judges.

• For appointments to the high courts, the Supreme Court Collegium consists of only 3 judges, i.e. The Chief Justice of India and two senior-most judges.
• Like the Supreme Court, the high courts, too, have a Collegium, headed by the chief justice of the high court and two senior-most judges as members.
• The High Court Collegium sends its judicial appointment recommendation only to the Supreme Court Collegium

WHAT ROLE DOES THE GOVERNMENT HAVE IN THE COLLEGIUM SYSTEM?

• The government come into play only after the SC decides the names of the judges to be recommended for elevation in the Supreme Court or a high court.
• The government can then raise objections and seek clarifications over the collegium’s choices. However, if the collegium reiterates the same names, the government has no option but to appoint them.
• After receipt of the final recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs will put up the recommendations to the prime minister who will advise the President on the matter of appointment.

ISSUES IN THE COLLEGIUM SYSTEM:

The conflict between the government and the Collegium over the appointment process is quite pronounced and often reaches a flashpoint. Here, issue of both sides have been mentioned below:

Court’s stand:

• Selective treatment: The Court has raised concerns about the Centre’s selective treatment of its recommendations. There are instances of the government returning names that had been reiterated more than once and even ignoring some of the Collegium’s decisions. For example, the government ignored the Collegium’s recommendation to appoint Justice S. Muralidhar as Chief Justice of the Madras High Court for so long that the Collegium eventually cancelled its recommendation.
• Pending appointment and transfer: The Court has raised concerns about long pending of appointment and transfer of judges by the Centre is affecting the judicial process and leads to losing of fresh talent. For instance, in the case of Justice T. Raja, who was Acting CJ in Madras for an unusually long period, the recommendation to transfer him to the Rajasthan High Court was ignored by the government until his retirement.

Centre’s stand:

• Lacks transparency and accountability: The government states that the Supreme Court Collegium lacks transparency and is a “closed-door affair”as no one knows on what basis the judge is being appointed. Also,  it highlights loopholes in the system and questions its accountability since it does not involve an official mechanism or secretariat.
• Alien concept: Government raises concern on the basis of collegium system and calls it an “alien” concept with no such provision mentioned in the constitution. It simply ignores the role of the executive in the appointment process.

THE WAY FORWARD

• Reform in collegium system: There is a need to have a proper reform in collegium system. For example, the law minister has sought the setting up of a “search and evaluation committee” with representation from the all the stakeholders in the selection of judges.
• Quicker implementation: Once the Collegium reiterates any recommendation, it should be implemented within three to four weeks by having proper consultation process for losing on the talents and preventing pendency in judicial system.
• Effective consultation: Views of both the judiciary and executive should be taken into account and need to prepare a Memorandum of Procedure (MOP) in consultation with the Chief Justice of India to enable transparency in the collegium system of appointment of judges. There is a need of inclusion of issues of eligibility, transparency, setting up the Secretariat for the appointment of judges, redressal of complaints and other issues in the MOP on the appointment of judges.

HOW JUDGES ARE APPOINTED IN OTHER MAJOR COUNTRIES

• In the US, judges of the Federal Court are appointed by the President with the advice and consent of the Senate. The candidates are assessed by a committee of the American Bar Association and reviewed by the Senate Judiciary Committee before a vote in the Senate. There is no set retirement age for judges in the US as they continue to hold office for “good behaviour”.
• In the UK, it is the independent Judicial Appointments Commission (JAC) that oversees the process of judges’ appointments. The JAC consists of 15 members; three of these are judges, while 12 members are selected through a process of open competition.
• In France, judges are appointed by the President on the recommendation of the Higher Council of the Judiciary. The judges are appointed for three-year terms, which are renewable on the recommendation of the Ministry of Justice.
• In South Africa, there is a 23-member Judicial Services Commission (JSC) that advises the President to nominate the judges.
• In most Latin American countries like Argentina and Brazil, the President nominates the judges, subject to the approval of the respective Senates.

THE CONCLUSION: The ongoing tussle between the Centre and the Supreme Court Collegium over the appointment of judges to the high courts and the Supreme Court has once again brought into focus the process of judicial appointments in India. There is a need for bold steps for the reform of the collegium system for effective functioning of judiciary.

PREVIOUS YEAR QUESTION:

Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to the appointment of judges of higher judiciary in India. (2017)

MAINS PRACTICE QUESTIONS:

Q.1 All institutions in a democratic country should have a representative character, but the Collegium system has not been able to address the issue of representation. Discuss.

Q.2 What is the process of appointment of judges in India? What is the issue in the collegium system, and how can it be resolved to increase the efficiency of the judiciary?

SOURCE: https://www.thehindu.com/opinion/editorial/delay-as-tactic-on-the-centre-and-collegium-relationship/article67426975.ece