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Judicial Appointments in India

History of Judicial Appointments in India

  • Vice-President of India, referred to the 2015 verdict of Supreme Court which struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment.
  • Union Law Minister has commented on public fora about how the NJAC could have provided a transparent alternative to the decades-old Collegium system of appointing judges.

Judges Case

  • First Judges case: Supreme Court held that the consultation with the CJI should be “full and effective”.
  • Second Judges case: It introduced the collegium system in 1993.
    • It ruled that the CJI would have to consult a collegium of his two senior-most judges in the apex court on judicial appointments.
    • The court held that such a “collective opinion” of the collegium would have primacy over the government.
  • Third Judges case, 1998: It expanded the judicial collegium to its present composition of the CJI and four of his senior-most judges.

Judicial Appointment in India

  • Article 124 of the Constitution: Judicial appointments to the Supreme Court must be made by the President in consultation with India’s chief justice and other senior judges of both the SC and High Courts.
  • Article 217: Appointments to the high courts should be fixed by the President, CJI and the Governors of states.
  • Collegium System of Judges Appointment: It is a system through which judges are appointed and transferred in the Supreme Court and high courts across the country.
    • In the Supreme Court, a group of five senior-most judges — led by the chief justice of India — decides on all the appointments and transfers of judges in the apex court.
    • These appointments include elevation of high court judges to the apex court and direct appointments of senior advocates as apex court judges.
    • Collegium system was not mentioned in the Constitution, its legal basis is found in three Supreme Court judgments — usually referred to as the ‘Judges Cases’ — concerning the higher judiciary.

Read about: Supreme Court Vacation

National Judicial Appointments Commission (NJAC)

  • 99thConstitution Amendment Act: It introduced three key Articles- 124 A, B, and C and amended clause 2 of Article 124.
    • Article 124A created the National Judicial Appointments Commission (NJAC), a constitutional body to replace the collegium system.
    • Article 124B vested in this NJAC the power to make appointments to both the Supreme Court and the various high courts.
    • Article 124C accorded express authority to Parliament to make laws regulating the the NJAC’s functioning.
  • Composition of NJAC
    • The Chief Justice of India as the ex officio Chairperson
    • Two senior-most Supreme Court Judges as ex officio members
    • The Union Minister of Law and Justice as ex officio member
    • Two eminent persons from civil society (to be nominated by a committee consisting of the Chief Justice of India, Prime Minster of India and the Leader of Opposition in the Lok Sabha; one of the eminent persons to be nominated from SC/ST/OBC/minorities or women)

 

Invalidation of NJAC and 99th Constitution Amendment Act

  • In early 2015, the Supreme Court Advocates-on-Record Association (SCAORA) filed a plea challenging the provisions of NJAC Act.
    • It contended that both the Acts were “unconstitutional” and “invalid”.
  • NJAC took away the primacy of the collective opinion of the Chief Justice of India and the two senior-most Judges of the Supreme Court of India as their collective recommendation could be vetoed or suspended by majority of three non-Judge members.
    • It stated that the Amendment “severely” damaged the basic structure of the Constitution, of which the independence of the judiciary in appointing judges of the higher judiciary was an integral part.

 

Independence of Judiciary and the “basic structure” Doctrine

  • Principle of the independence of the judiciary: It was derived from the theory of separation of powers, enshrined in Article 50.
  • The “basic structure” doctrine was delivered by Kesavananda Bharati judgement (1973).
    • Article 368 grants Parliament a virtual plenary power to amend the Constitution but the Court had held that Constitution could not be read in a manner that destroyed or infracted the document’s basic structure.
  • Supreme Court five-judge bench in 2015, ruled with a 4:1 majority, that the NJAC was “unconstitutional” and violated the “basic structure of the constitution”.
    • However, bench admitted that all was not well even with the collegium system of “judges appointing judges”, and that the time was ripe to improve the system of judicial appointments, inviting the government to work on improving the collegium system.

Conclusion

  • Collegium system needs reforms: The long history of the politics surrounding the debate between the judiciary and the government, means that the process will require all stakeholders to come to a mutual understanding.

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