Independence of Judiciary means independence from Executive and Legislature, but not independence from accountability.
–

Prashant Bhushan

The Judicial system works independently however its judges’ are appointed by the President. He acts on the advice of the council of ministers and Article 124(2) of our Constitution mandates the President to appoint judges after consulting with the existing judges of that court. Prior to that the judges were appointed by him on the recommendations of the Union cabinet . The appointments were basically decided by the executive government & this appointing authority of the President was a mere formality until 1973. This procedure started to dissolve & in 1973 Indra Gandhi led government shifted from the policy of appointing the senior most judges as the CJI and appointed Justice A. N. Ray as the CJI. In 1977 the same government appointed Justice M.U. Beg instead of Justice Khanna who was the then senior.

In S.P. Gupta v. Union Of India, AIR 1982 SC 149 also known as the 1st judge case. The president leaned towards the recommendations of the Delhi CJ rather than the CJI on the extension terms of the additional judge. In this case it was held that according to section 217 a recommendation of the High courts’ CJ cannot be considered less valuable than the CJI’s suggestions.

In the famously known 2nd judge case Supreme Court Advocates-on-Record Association v. Union of India, 1993 (4) SCC 441.

A PIL was filed in 1993 before the court regarding the vacancies questioning its incompetency with respect to appointment and transfer of judges. The majority of the judges held that the opinion of the CJI had primacy for appointment of judges and that appointment of judges couldn’t take place unless there was confirmation from the CJI. Additionally the ruling included the mentioning of CJI as the senior most judges and that the number of judges in the High Court could also be fixed. The 1991 case of Subhash Sharma v. Union of India was followed to propose that the CJI’s opinion is prevalent for transfer of CJs of high courts. It was justified stating that Article 74(1) restricted consultations under Article 124(2) and 217(1) and that authorizing such exclusive powers to the council of ministers would thwart the consultation procedure. From 1998 the progression of the collegium system started for appointment of judges. It consisted of 4 senior most judges along with the CJI. The collegiums included the next would be CJI and if the judges gave disadvantageous reasons then the CJI would not pass the names as recommendations to the government. The Chief Justice of the High Court shall also be consulted with respect to transfer of judges from the High Court. However this system was also criticized by the parliament that stated it lacked transparency.

Thus through the 99th amendment act the NJAC (National judicial appointments commission) was constituted from 2014. It consisted of the CJI as its chairman and other members included 2 senior most judges, the central law minister who shall act as an ex officio member, and 2 other Indian persons who shall be selected by the CJI, PM & opposition leader of the Lok Sabha. However the NJAC was held unconstitutional in the case of Supreme Court Advocates on Records Association v. Union of India (2015) AIR 2015 SC 5457. It was said that the independent and separate powers of the judiciary were the prime reasons why it was struck down.

If 2 members of the NJAC claimed a person incompetent he shall be considered unworthy of being appointed. Thus the collegium system started operating again. However the modern system has its own problems as there are many recommendations made by the collegium that are still pending. Vacancies in the High courts have been increasing and the collegium can’t complete the recommendation phase due to lack of information from the government. The recommendations of the collegium when rejected by the union no one sought for a writ of quo warranto thus this quietness left the executive with unwarranted authority.

The situation of the collegium needs immediate attention. It cannot be denied that the appointment system is unaccountable however the union government also interferes and doesn’t work hand in hand with the judiciary.

The collegium system is not appreciated by many people as it fails to maintain transparency during appointment of judges. The Judiciary upholds the faith of its people by being an independent body. The process of collegium being opaque leaves a doubt on the functioning of the institution as it does not declare the weight-age given for appointment nor it allows any formal application to be filled for the appointment of the required designation. Although the system is not broken, it leaves a sense of dissatisfaction which needs to be explicitly crystal clear to maintain the faith of people in the institution. However the NJAC is unconstitutional and undermines the say of democracy. Not only that the opinion or say of two members is enough to claim a person incompetent and unworthy without any questioning. It is undeniable whether India follows the collegium system or had the NJAC nepotism remains our petty underlying issue that also leaves the sense of dissatisfaction and doubt in the minds of many. It overlooks plenty of talented judges and advocates. But it keeps the judiciary at bay from intercession by the union and political imposition of uncalled liabilities.

Aishwarya Says:

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