THE CONTEXT: The Himachal Pradesh case involved procedural lapses in the High Court collegium’s decision-making process, where two senior district judges were overlooked for elevation. The Supreme Court intervened, emphasizing the need for collective consultation and adherence to established protocols in judicial appointments.
CONSTITUTIONAL PROVISIONS RELATED TO APPOINTMENT OF JUDGES:
- Article 124: It states that the judges of the Supreme Court, including the Chief Justice of India, are appointed by the President of India. The President must consult with judges of the Supreme Court and High Courts as deemed necessary. The judges hold office until they reach the age of 65 years.
- Article 217: It specifies that judges are appointed by the President after consulting the Chief Justice of India, the Governor of the respective state, and, in the case of a judge other than the Chief Justice, the Chief Justice of the High Court concerned. High Court judges hold office until the age of 62 years.
EVOLUTION OF APPOINTMENT IN HIGHER JUDICIARY SINCE FIRST JUDGE CASE:
- First Judges Case (1981): In the case of S.P. Gupta vs. Union of India (1981), known as the First Judges Case, the Supreme Court held that the word “consultation” in Articles 124 and 217 did not mean “concurrence.” This interpretation gave the executive primacy in judicial appointments, allowing it to have the final say.
- Second Judges Case (1993): The Second Judges Case, Supreme Court Advocates-on-Record Association vs. Union of India (1993), marked a significant shift by establishing the collegium system. The Supreme Court overruled its earlier decision, asserting that the CJI’s opinion should have primacy in judicial appointments, thus reducing the executive’s role. The collegium was defined as a body consisting of the CJI and the two senior-most judges of the Supreme Court for High Court appointments, and the CJI and the four senior-most judges for Supreme Court appointments.
- Third Judges Case (1998): In response to a Presidential Reference, the Supreme Court in the Third Judges Case clarified the collegium system further. It expanded the collegium for Supreme Court appointments to include the CJI and the four senior-most judges, emphasizing the importance of collective decision-making and consultation among the judiciary.
- Fourth Judges Case (2015): The Fourth Judges Case, formally known as Supreme Court Advocates-on-Record Association vs. Union of India (2015), arose after the introduction of the National Judicial Appointments Commission (NJAC) through the 99th Constitutional Amendment. The NJAC aimed to replace the collegium system with a more transparent and accountable process involving both judicial and executive members. However, the Supreme Court struck down the NJAC as unconstitutional, reaffirming the collegium system and emphasizing that judicial independence is part of the Constitution’s basic structure, which cannot be altered by amendments.
PROCEDURE FOR THE APPOINTMENT OF HIGH COURT JUDGES: The process is governed by Article 217 of the Indian Constitution and the Memorandum of Procedure, which outlines the detailed steps and consultations required for the appointment of High Court judges.
- Initiation by High Court Collegium: The process begins with the High Court collegium, which consists of the Chief Justice of the High Court and the two senior-most judges. This collegium recommends names for judicial appointments based on factors such as seniority, legal acumen, and professional competence.
- Consultation with State Authorities: The recommendations are sent to the Chief Minister of the state, who advises the Governor to forward the proposal to the Union Law Minister. This step involves consultation with state-level constitutional authorities.
- Background Checks: The central government, through the Intelligence Bureau (IB), conducts background checks on the recommended candidates. This includes verifying their educational qualifications, professional experience, and any criminal records.
- Review by Supreme Court Collegium: The recommendations, along with the IB report, are reviewed by the Supreme Court collegium, which includes the Chief Justice of India and the two senior-most judges of the Supreme Court. This collegium evaluates the recommendations and may suggest changes or additions.
- Presidential Appointment: Once the Supreme Court collegium finalizes the recommendations, the names are sent to the President of India for approval. The President appoints the judges based on these recommendations.
- Oath of Office: After the President’s approval, the appointed judges take the oath of office before the Chief Justice of the High Court, completing the appointment process.
THE ISSUES:
- Lack of Collective Consultation: The Supreme Court found that the Himachal Pradesh High Court collegium failed to act collectively in reconsidering the names of two district judges for elevation. The Chief Justice of the High Court had individually reconsidered the recommendations, which violated the principle that such decisions must be made collectively by the collegium.
- Ignoring Seniority and Merit: The petitioners, Chirag Bhanu Singh and Arvind Malhotra, argued that their seniority and unblemished service records were overlooked by the High Court collegium, which recommended other, less senior judicial officers for elevation. This raised concerns about adherence to established principles of considering seniority in judicial appointments.
- Procedural Lapses: The Supreme Court noted procedural lapses in the High Court collegium’s process, specifically the failure to reconsider the petitioners’ names in accordance with the Supreme Court collegium’s directive and the Law Minister’s communication.
- Judicial Review of Collegium Decisions: The case highlighted the scope of judicial review in matters of judicial appointments, focusing on procedural aspects such as effective consultation rather than the merits or suitability of candidates. The Supreme Court emphasized that “lack of effective consultation” falls within the scope of judicial review.
- Role of the Chief Justice: The Supreme Court clarified that the Chief Justice of a High Court cannot unilaterally decide on the reconsideration of judicial appointments. The decision must involve all members of the collegium, ensuring a collaborative and participatory process.
THE WAY FORWARD:
- Strengthening Collective Consultation in the Collegium System: Articles 124 and 217 of the Indian Constitution mandate consultation with the Chief Justice of India and other senior judges for judicial appointments. The Supreme Court has emphasized that decisions must be made collectively by the collegium, not unilaterally by any single member.
- Reforming the Memorandum of Procedure (MoP): The MoP, which outlines the process for judicial appointments, should be revised to incorporate mechanisms for transparency and accountability. The MoP should include provisions for publishing the criteria and reasons for judicial appointments to enhance transparency. The UK’s Judicial Appointments Commission uses a transparent process involving multiple stakeholders, which could serve as a model for India.
- Revisiting the National Judicial Appointments Commission (NJAC): A restructured NJAC could balance judicial independence with accountability by including representatives from the judiciary, executive, and civil society. Countries like South Africa and France use commissions that involve multiple stakeholders, ensuring a balanced and independent appointment process.
- Increasing Judicial Strength and Addressing Vacancies: The Law Commission of India has suggested increasing the number of judges to 50 per million people, which could reduce case pendency. Expediting the appointment process and ensuring a steady pipeline of qualified candidates can address this issue.
- Enhancing Transparency and Accountability: Establishing a judicial accountability framework, such as the lapsed Judicial Standards and Accountability Bill, could ensure that judges are held to high ethical standards. Experts have called for a more open process to build public trust and ensure that appointments reflect merit and diversity.
THE CONCLUSION:
Implementing reforms to ensure collective consultation and enhance transparency can strengthen the collegium system and foster the trust in judicial appointments.
UPSC PAST YEAR QUESTION:
Q.1 Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India. 2017
Q.2 Constitutionally guaranteed judicial independence is a prerequisite of democracy. Comment. 2023
MAINS PRACTICE QUESTION:
Q.1 Critically evaluate the challenges faced by the collegium system. Discuss the implications of individual versus collective decision-making within the judiciary and suggest reforms to enhance transparency and accountability in judicial appointments.
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