SC Declines Plea Against Collegium System | 18 May 2024

Source: TOI

Why in News?

Recently, two senior-most district judges moved to the Supreme Court alleging that the Himachal Pradesh HC collegium overlooked their merit and seniority in the selection process of judges, and have taken their grievances to the Supreme Court.

• The issue highlights concerns about the adherence to the Supreme Court-devised process for selecting High Court judges.
• Previously in April, the Supreme Court registry refused to accept a petition to end the Collegium system of judicial appointments and revive the National Judicial Appointments Commission (NJAC).

What is a Collegium System and How Did It Evolve?

• About:
  • It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
    • Articles 124(2) and Article 217 of the Indian Constitution deal with the appointment of judges to the Supreme Court and High Courts.
    • The Supreme Court has already upheld the collegium system, and struck down NJAC -which gave an equal role to the government in judicial appointments — by a Constitution Bench in 2015. A review plea against the judgement was also subsequently dismissed in 2018.

Collegium System According to Third Judges Case (1998):

What are the Issues Related to the Collegium System?

• Exclusion of Executive:
  • The complete exclusion of the executive from the judicial appointment process created a system where a few judges appoint the rest in complete secrecy.
  • Also, they are not accountable to any administrative body that may lead to the wrong choice of the candidate while overlooking the right candidate.
• Chances of Favouritism and Nepotism:
  • The collegium system does not provide any specific criteria for testing the candidate for the post of CJI because of which it leads to wide scope for nepotism and favouritism.
    • For instance, as per the two senior-most district judges, the Himachal Pradesh HC collegium had ignored the SC collegium's advice in the selection process of judicial officers much junior to them, bypassing their merit, seniority, and "unblemished judicial track record."
  • Allegedly, the collegium system gives rise to non-transparency of the judicial appointments, which is very harmful for the regulation of law and order in the country.
• Against the Principle of Checks and Balances:
  • The principle of check and balance is violated in this system. In India, three organs work partially independently but they keep check and balance and control the excessive powers of any organ.
  • However, the collegium system gives the Judiciary immense power, which leaves little room for checks and poses the risk of misuse.
• Close-Door Mechanism:
  • Critics have pointed out that this system does not involve any official secretariat. It is seen as a closed-door affair with no public knowledge of how and when a collegium meets, and how it takes its decisions.
  • Also, there are no official minutes of collegium proceedings.
• Unequal Representation:
  • The other area of concern is the composition of the higher judiciary, women are fairly underrepresented in the higher judiciary.

Way Forward

• Ensuring Transparency and Objectivity:
  • Clear and objective criteria for selection, including factors like merit, seniority, and diversity should be developed.
  • A mechanism for recording and publishing collegium decisions, while protecting legitimate privacy concerns should be implemented.
• Balancing Independence and Accountability:
  • There is a need to find a way to involve the government in the appointment process without compromising judicial independence. This could involve a consultative mechanism or a time-bound confirmation process.
  • For example: The National Commission to Review the Working of the Constitution (NCRWC) recommended:
    • Establishment of a National Judicial Commission under the Constitution.
    • Examination of complaints of deviant behaviour of SC and HC judges by a committee of the National Judicial Commission.
    • Setting up of a National Judicial Council and Judicial Council in states for the preparation of plans and annual budget proposals.
• Promoting Diversity:
  • There is a need to implement affirmative action measures to increase the representation of women, minorities, and disadvantaged social groups in the judiciary.
  • For instance, the issue of nepotism or 'Uncle Judges' syndrome’ in judicial appointments was addressed by the Law Commission of India (230^th Report).
  • It recommended that judges not be appointed to High Courts where their family members have legal practices.

Conclusion

The solution lies in balancing competing interests. The executive must demonstrate a genuine commitment to judicial independence, while the judiciary should be sensitive in maintaining transparency in judicial appointments. This inherent tension is essential for a healthy check and balance system that safeguards individual rights and the Constitution.