Independence of Judiciary
Constitutional provisions
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- Appointment by Collegium system
- Security of Tenure as removed by President through impeachment
- Fixed Service Conditions (Article-125) and cannot be changed to their disadvantage after appointment
- Charged Expenditure
- Bar Parliamentary Interference (Article-121)
- Ban on Post-Retirement Practice
- Power to Punish for its Contempt (Article-129)
Importance of independent judiciary:
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- Upholding the Rule of Law and fostering constitutionalism.
- Protection of Fundamental Rights
- Checks and Balances to prevent abuse of power (Alexander Hamilton)
- Tool for social transformation and upliftment of marginalized sections of society (Justice V.R. Krishna Iyer)
- Fostering Democratic Values and ensuring constitutional morality.
- Preserving democracy (Justice P.N. Bhagwati)
NJAC vs Collegium
Evolution of the collegium system
| First Judges case (1982) | The Court held that consultation does not mean concurrence and it only implies exchange of views. |
| Second Judges case (1993) | The court changed the meaning of the word consultation to concurrence and that the advice tendered by the CJI will be binding on the President. The Chief Justice would tender his advice after consulting two seniormost judges. |
| Third Judges case (1998) | The Court opined that the consultation process requires consultation of plurality judges. A collegium of four seniormost judges of the Supreme Court to be consulted and even if two judges give an adverse opinion,the CJI should not send recommendation to the government. |
| Fourth Judges case (2016) | The Court declared 99th Constitutional Amendment and the NJAC Act as unconstitutional and void, establishing the supremacy of collegium system. |
National Judicial Appointments Commission (NJAC)
It was proposed as an independent commission to appoint judges to the Supreme Court and high courts to replace the collegium system. But SC declared it unconstitutional on the following grounds:
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- The commission shifts balance of power towards executive.
- The commission can threaten the independence of Judiciary.
- It objected the presence of Law Minister as a part of commission.
The court opined that the independence of Judiciary is non-negotiable and was based on the perceived threat to independence of Judiciary.
But still NJAC can be considered a better practice than collegium system.
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- Participation of all the three organs of the government
- Promotes balance of power
- Promotes transparency by eliminating the dominance of any one organ
Way forward:
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- Strike a balance between judicial independence and judicial accountability.
- Setting up of an independent commission as recommended by 2nd ARC, Law Commission and NCRWC.
- Composition recommended by 2nd ARC is:
- Judiciary: CJI; [For HC judges: Chief Justice of the relevant High Court of that state]
- Executive: Vice-President (Chairperson), PM, Law Minister, [For HC judges: CM of the state]
- Legislature: Speaker of Lok Sabha, Leaders of Opposition from both Houses of Parliament.
- Other: No representative.
ADDITIONAL INFORMATION
Appointment process in different countries:
| Country | Method of Appointment to the highest court | Who is involved in making the appointments |
|---|---|---|
| UK | SC judges are appointed by a five-person selection commission. | It consists of the SC President, his deputy, and one member each appointed by the JACs of England, Scotland and Northern Ireland. (The JACs comprise lay persons, members of the judiciary and the Bar and make appointments of judges of lower courts.) |
| Canada | Appointments are made by the Governor in Council. | A selection panel comprising five MPs (from the government and the opposition) reviews list of nominees and submits 3 names to the Prime Minister. |
| USA | Appointments are made by the President. | Supreme Court Justices are nominated by the President and confirmed by the United States Senate. |
Merit vs Seniority in appointment
Seniority
| Advantage | Disadvantages |
|---|---|
| • Rules out external influence • All get opportunity • Clarity about who is going to serve at helm • Ensure stability in institution | • Leads to short tenure, affecting leadership and innovation • Discourages merit which is essential for innovation • Undermines social, gender and regional diversity |
Merit
| Advantage | Disadvantages |
|---|---|
| • Promotes innovation • Encourage meritorious people to join Judiciary • Can provide strong leadership if fixed tenure • Promotes expertise and specialization. | • Risk of external influence in terms of politically motivated decisions and external influence. • Difficult to define merit • Those with seniority may get dissatisfied. • Subjectivity in appointment. |
Way forward:
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- CJI- Seniority along with minimum tenure.
- Fixed tenure of 2 years.
