The appointment and elevation of higher judiciary is recommended by the collegium system in India. Should a nod from the executive is necessary for the appointment? Is it not a threat to the independence of judiciary?
Article 124 of the Constitution says that every judge of the Supreme Court is appointed by the President in consultation with such of the judges of the Supreme Court and High Courts as the President may deem necessary .
Total strength of the Supreme Court is 31 but only 24 judges are currently functioning.Therefore,there is a need for further appointments.
The Five Judge Collegium comprising Chief Justice Dipak Misra and Justices Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph has unanimously recommended the two names, Indu Malhotra,an Advocate and Justice KM Joseph, the current Chief Justice of Uttarakhand High Court. Centre cleared the recommendation of Indu Malhotra but did not give nod for the appointment of Justice KM Joseph and said that he is low on seniority list and In the All India high court judges seniority list, Shri justice KM Joseph is placed at serial number 42. The government also said that the High Court from which he hails has adequate representation. "The high courts, namely Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu & Kashmir, Uttarakhand and some smaller high courts namely Sikkim, Manipur, Meghalaya are not represented in the Supreme Court at present." Last but not the least the centre said that there is no representation of Scheduled Caste/Scheduled Tribe in the Supreme Court.
But according to the collegium, “Justice Joseph is more deserving and suitable in all respects than other chief justices and senior puisne judges of high courts for being appointed as judge of the Supreme Court of India".
Justice Joseph presided over a bench of Uttarakhand HC that quashed the presidential rule imposed by Centre after dissolving Uttarakhand Assembly. Many people are of the opinion that Justice Joseph is ‘paying the price’ for rendering judgment against the centre. Well, we don’t know the truth but are personal grudges the reason for the delay of the appointment? On April 9, Justice Kurian Joseph said “it is the first time in the history of this Court where nothing is known as to what has happened to a recommendation even after three months.” The discussions as to his appointment are still going on.
To understand this, firstly we need to understand the concept of collegium system in India. The Collegium system was evolved through various judgments of the Supreme Court.In this system the Chief Justice of India and a forum of four senior most judges of the Supreme Court recommend appointments and transfers of judges.
Now the question arises that what is this collegium system? How it evolved? And is there any other procedure for the appointments of judges in higher judiciary?
The system was evolved through Supreme Court judgments in the Three Judges Cases:
S.P. Gupta Vs Union of India, 1981 which is commonly known as the First Judges Case gave the Executive primacy over the Judiciary in judicial appointments.This situation prevailed for the next 12 years.
Supreme Court Advocates on Record Association Vs Union of India,1993 or the Second Judges Case overruled the decision in S.P. Gupta and framed a specific procedure called Collegium System for the appointment and transfer of judges in the higher judiciary.
The court said that the recommendation should be made by the CJI in consultation with his two senior-most colleagues, and that such recommendation should normally be given effect to by the executive.
The executive can ask the collegium to reconsider the name if it had an objection to the name recommended,but, if on reconsideration, the collegium reiterated the recommendation, the executive was bound to make the appointment.
In Special Reference case of 1998 or the Three Judges Case, 1998 the Court laid down that the recommendation should be made by the CJI and his four seniormost colleagues, instead of two.
The appointment of Justice A.N. Ray as the Chief Justice of India over three of the most senior Judges of the Supreme Court was the major controversy in the recent past.
The National Judicial Appointments Commission (NJAC) was also established through ninety-ninth amendment of the Constitution. It was proposed to replace the present Collegium system of appointing judges.In a collective order, on 16 October 2015 the Supreme Court struck down the NJAC Act, 2014.The rift between the Government and the judiciary has been continuing ever since the Constitution Bench of the Supreme Court declared the National Judicial Appointments Commission (NJAC) unconstitutional.Now SC have issued guidelines to improve the Collegium System and directed the Centre to draft MoP (Memorandum of Procedure).
The prevalent “Collegium System” has been severely criticised, as being non-transparent and prone to nepotism since it does not involve any official mechanism. There is no knowledge about the collegium decisions and its meetings. Executive have to give a nod to the recommendations of the collegium. It is a severe threat to independence of judiciary.
But now to make judicial appointments transparent,the SC made a new tab by the name “Collegium Resolutions” on its official portal. All the information regarding the reasons for the recommendation or rejection of a name for appointment, transfer or elevation is available on its website to ensure transparency.
What do you think? The collegium system is fair or not? Interference of executive is justifiable? of Please tell us in the comments below.