Syllabus: Structure, organization and functioning of the Executive and the Judiciary
Context: Supreme Court Collegium reversed its recommendation for Justice Atul Sreedharan’s transfer, shifting from Chhattisgarh High Court to Allahabad High Court following Centre’s preferences. This reversal raises concerns about executive interference in judicial independence and constitutional court appointments.
Collegium System in Indian Judiciary
- Mechanism for appointing and transferring judges in Supreme Court and High Courts.
- Constitutional Status: Not rooted in Constitution; evolved through Supreme Court judgments over time.
- Supreme Court Collegium: CJI with four senior-most Supreme Court judges recommends appointments and transfers.
- High Court Collegium: Led by incumbent Chief Justice and two senior-most judges of that court.
- Government Role: Can raise objections and seek clarifications; must appoint if Collegium reiterates recommendations.
- Constitutional Provisions
- Article 124: President appoints Supreme Court judges after consulting High Court and Supreme Court judges.
- CJI Consultation: CJI consulted for all appointments except his or her own appointment.
- Article 217: President appoints High Court judges after consulting CJI, State Governor and concerned Chief Justice.
Evolution Through Judgments
- First Judge Case (1981): S.P. Gupta vs Union held consultation means exchanging views, not concurrence.
- Second Judge Case (1993): Supreme Court reversed earlier judgment; consultation now means concurrence with CJI’s advice.
- CJI’s Advice: CJI must consult two senior-most colleagues before tendering binding advice to President.
- Third Judge Case (1998): CJI requires consulting plurality of four senior-most judges for appointments.
- Adverse Opinion Rule: Recommendation not sent to government if two judges give adverse opinion.
- NJAC Act (2014): Brought to replace Collegium however, five-judge bench declared unconstitutional threatening judicial independence.
Criticisms of Collegium System
- Transparency Deficit: Collegium decisions not disclosed publicly; reasons for choices remain opaque and undisclosed.
- Judicial Vacancies: System failed addressing vacancies
- Nepotism Allegations: 2009 Law Commission noted nepotism and political privilege rife in Collegium functioning.
- Checks and Balances: Complete executive exclusion violates accountability principle in appointment process.
- Gender Representation: Women inadequately represented; only 4 of 33 Supreme Court justices are women currently.
- High Court Gender Gap: Women constitute merely 11.5% of High Court judges across India.
- Transfer Opacity: Neither Supreme Court nor government discloses reasons for judge transfers threatening independence.
Way Forward Recommendations
- Expanded Eligibility: Include merit and suitability criteria beyond Constitution; open invitation for eligible candidates.
- Diversity Enhancement: Provide adequate representation for women in all judicial appointments systematically.
- Transparency Measures: Maintain candidate lists; exchange opinions in writing; document and record collegium proceedings.
- Law Commission Suggestions:
- Equal judiciary-executive role
- Increase retirement age to 65 (High Court) and 68 (Supreme Court).
- Diverse Sources: Appoint distinguished jurists and Bar members as Article 124(3) contemplates beyond career judges.
Q- Compare the Collegium system with the National Judicial Appointments Commission (NJAC). Why was NJAC declared unconstitutional? Suggest a balanced framework that ensures both judicial independence and executive accountability. (15 Marks)