“Effective Consultation” in Judicial Appointments

• 12 Sep 2024

For Prelims: Collegium System, Chief Justice of India, Supreme Court, High Court.

For Mains: Evolution of the Collegium System and its Criticism, Appointment of Judges in SC

Source: IE

Why in News?

Recently, the Supreme Court (SC) in its ruling emphasised the importance of seniority and effective consultation in the appointment of High Court judges.

• In a case involving the Himachal Pradesh High Court (HC) collegium, the Supreme Court ruled that a 'lack of effective consultation' in judicial appointments falls within the scope of judicial review. 
• It directed a reconsideration of two judicial officers recommended for elevation, highlighting the importance of procedural adherence.

What is the Background of Case and Supreme Court Ruling?

• Background:
  • In December 2022, the Himachal Pradesh HC collegium recommended two District judges for elevation to HC Judges. 
  • However, the SC collegium requested reconsideration on this prompting a further review. 
  • Later, HC collegium recommended two other judicial officers. The initially recommended judges challenged this decision in the SC, arguing their seniority was overlooked. 
• Supreme Court’ Ruling:
  • Maintainability: The SC assessed whether it had jurisdiction to review appointment recommendations, referencing the Second and Third Judges Cases. 
    • It ruled that its review focused solely on whether "effective consultation" occurred after the SC collegium's resolution, without evaluating the candidates' "merits" or "suitability."
  • Proper Procedure: The SC collegium had returned the recommendations to the HC Chief Justice and requested for reconsideration of names.
    • The SC examined whether the HC Chief Justice had "effective consultation" with other judges of the High Court.
    • SC held that despite the resolution being addressed to the Chief Justice of HC, he could not independently make recommendations. Decisions must involve "collective consultation" among the Chief Justice and the two senior-most judges of HC.
  • This ruling reinforces the need for adherence to established procedures in judicial appointments and highlights the importance of seniority, ensuring a fair and transparent process in the elevation of judges.

What is the Procedure for the Appointment of High Court Judges?

• Procedure: The appointment of judges to the High Courts follows a procedure based on the collegium system, which was established through various landmark cases, such as Second Judges Case (1993) and further clarified in the Third Judges Case (1998). 
  • The collegium system empowers the judiciary to recommend appointments and transfers of judges to the Supreme Court and High Courts, with the government having a limited role.
  • After the Third Judges Case (1998), the central government and the SC formalised High Court judge appointments through a Memorandum of Procedure (MoP).

• Appointment of High Court Judges:

  • For High Court appointments, the collegium comprises the Chief Justice of India (CJI) and the 2 senior most judges of the Supreme Court. 

  • This collegium would form an opinion on a person to be recommended for appointment to the High Court, taking into account the views of the Chief Justice of the concerned High Court, senior Judges of the High Court, and Judges of the Supreme Court conversant with the affairs of that High Court.
• Memorandum of Procedure (MoP) for Appointment of High Court Judge:

  • High Court Collegium Recommendation: The Chief Justice of the High Court, in consultation with the 2 senior most judges of that court, recommends names for appointment.

  • State-Level Review: The recommendations are sent to the Chief Minister and Governor for their views, though they do not have the power to reject the recommendation.
  • Central Government Process: The Governor forwards the recommendations to the Union Minister of Law and Justice, who conducts a background check.
  • Supreme Court Collegium Review: The recommendations are then sent to the CJI, who consults the Supreme Court collegium. If approved, the names are sent to the President for final approval.
    • The government's role is limited to delaying appointments or raising concerns, but it cannot overrule the collegium's recommendations.

What is a Collegium System of Judicial Appointments?

• About: It is the system of appointment and transfer of judges of the Supreme Court and High Courts that has evolved through judgments of the Supreme Court (SC), and not by an Act of Parliament or by a provision of the Constitution.
• Evolution of the System:

  • First Judges Case (1981): It is also known as S.P. Gupta v. Union of India (1981).

    • It stated that the CJI’s  recommendations on judicial appointments and transfers can be rejected for “cogent (strong and convincing) reasons.”
    • The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
  • Second Judges Case (1993): SC in Supreme Court Advocates-on-Record Association vs Union of India (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • The ruling made the SC collegium's recommendations binding on the central government and granted the judiciary the authority to appoint and transfer higher judiciary judges.
    • It also added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
  • Third Judges Case (1998): SC on the President's reference (Article 143) expanded the Collegium to a 5-member body, comprising the CJI and 4 of his senior-most colleagues.
    • It also outlined 2 limited grounds for challenging a recommendation.
      • Lack of "effective consultation" with relevant individuals or institutions.
      • The candidate's ineligibility based on the qualifications specified in Articles 217 (High Court) and Article 124 (Supreme Court) of the Constitution.
  • Head of Collegium System:
    • The SC collegium is headed by the CJI (Chief Justice of India) and comprises 4 other senior most judges of the court.
    • A HC collegium is led by its Chief Justice and 4 other senior most judges of that HC.
      • Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
    • Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.

Appointment	Consultation
Appointment of Judge of Supreme Court	4 Senior most Judges of the Supreme Court
Appointment of Judge of High Court	2 Senior most Judges of the Supreme Court
Transfer of Judge of High Court	4 Senior most judges of the Supreme Court along with the judges of the two High Courts.

What are the Demerits of the Collegium System?

• Lack of Transparency: The system is criticised for its opaqueness, with limited public insight into the appointment process.
• Nepotism: There is a concern that personal connections and relationships (Uncle Judge syndrome) within the judiciary can influence appointments, potentially leading to favoritism.
• Inefficiency: The absence of a permanent commission for judicial appointments can lead to delays and inefficiencies in filling vacancies.

Conclusion

The ongoing debate surrounding judicial appointments in India underscores the necessity for reforming the collegium system to enhance transparency, accountability, and efficiency. Implementing measures such as revising the National Judicial Appointments Commission (NJAC) or adopting comparable reforms could effectively address these concerns and contribute to the overall improvement of the judiciary's operations.

UPSC Civil Services Examination, Previous Year Question (PYQ)

Prelims

Q. With reference to the Indian judiciary, consider thefollowing statements: (2021)

1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with the prior permission of the President of India.
2. A High Court in India has the power to review its own judgement as the Supreme Court does.

Which of the statements given above is/are correct?

(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither I nor 2

Ans: (c)

---

Mains

Q. 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)