NEWS The collegium system and the mysteries underlining its decision-making dilute the importance of the High Courts.

CONTEXT 

• In recent weeks, new judges have been appointed to the Supreme Court of India, filling up the long overdue vacancies.
• Now, after a meeting the collegium has made proposals to alter the existing composition of various High Courts.

POSSIBLE CHANGES

• When these recommendations are notified:

• • new Chief Justices will be appointed to as many as eight different courts,
  • five existing Chief Justices will swap positions with others,
  • a slew of puisne judges will be moved to new courts

INTERPRETATION OF SECOND JUDGE CASE, 1993

• The constitution’s framers adopted what Dr. B.R. Ambedkar described it as a “middle course” to strike a balance between the sovereign function of making appointments and the need to ensure an independent judiciary. This path stipulates the following:
• Judges to the Supreme Court are to be appointed by the President of India in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit.
• Judges to the High Courts are to be appointed by the President in consultation with the CJI, the Governor of the State and the Chief Justice of that court.
• In the case of transfers, the President may move a judge from one High Court to another, after consulting the CJI.
• In this set of appointments, there is no mention of a “collegium”. But since 1993, when the Supreme Court gave ruling in the Second Judges Case, the word consultation has been interpreted to mean “concurrence”.
  • In this judgment, the Court held that concurrence ought to be secured not from the CJI alone, but from a body of judges that the judgment described as a “collegium”.
• Thus, the Court winded up creating a whole new process for making appointments and transfers and carved out a system where notional primacy came to rest in the top tier of the judiciary.

MEMORANDUM OF PROCEDURE FOR APPOINTMENTS

• The collegium for appointments to the Supreme Court and for transfers between High Courts comprises the CJI and his four senior-most colleagues, and for appointment to Chief Justice of High Courts comprises the CJI and his two senior-most colleagues.
• A collegium for appointing judges to the High Courts is led by its Chief Justice and four other senior most judges of that court.
  • The collegium must also consult other senior judges on the Supreme Court who had previously served as judges of the High Court under consideration.
• All of this is contained in a “Memorandum of Procedure” (MoP). But there is, in fact, no actual guidance on how judges are to be selected.

THE NJAC AND AFTER

• In 2015, Parliament sought to undo the complicated procedures put in place by the Court through the 99th Constitutional Amendment, thus creating the National Judicial Appointments Commission (NJAC).
• It comprised members from the judiciary, the executive, and the lay-public.
• But the Court  overruled the efforts to replace the collegium and it held in the Fourth Judges Case that judicial primacy in making appointments and transfers was an essential feature of the Constitution.
  • In other words, the Court held that a body that found no mention in the actual text of the Constitution had assumed a position so sacrosanct that it could not be touched even by a constitutional amendment.

CONCERNS WITH COLLEGIUM SYSTEM

• The process makes the appointments and transfers to rest in the top tier of the judiciary. This, raising legitimate fears that the commission might result in the appointment of malleable judges.
• Based on such a system, the Court holds that a body that finds no mention in the actual text of the Constitution has assumed a position so sacrosanct that it cannot be touched even by a constitutional amendment.
• The long-standing apprehensions about the collegium’s operation remain unaddressed specifically, with respect to its opacity and a lack of independent scrutiny of its decisions.
• Even without express constitutional sanction, the collegium effectively exercises a power of supervision over each of the High Courts.

WAYFORWARD

• Separation of powers being a bedrock principle of Indian constitutionalism, guarantees  autonomous judiciary.
  • To that end, the process of appointing and transferring judges assumes salience.
• Therefore, until a proper alternative is framed, the collegium represents the best solution.
  • Allowing senior judges of the Supreme Court primacy in matters of appointments and transfers is the only practical way to guarantee the independence of the judiciary.
• But when the Court struck down the NJAC, it also promised to reform the existing system. Six years down the line those promises have been all but forgotten.
• A new Memorandum of procedure is the need of the hour.
• The procedure for selecting judges must be transparent based on “merit” and “diversity.
• Restoring High Courts to the position of prestige must be seen as essential to the process of building trust in our Constitution.
• It is clear that the present system and the mysteries underlining the decision-making only weakens the institution of judiciary. Hence, achieving these objectives will no doubt require more than just a tweak in the process of appointments.

CONCLUSION

The need of the hour is that we must take the task of reforming the existing scheme of appointments seriously, because the status quo is ultimately corrosive of the very institutions that it seeks to protect.

Reference:

1. https://www.thehindu.com/opinion/lead/this-judicial-selection-needs-more-than-a-tweak/article36619908.ece