“Representative Judiciary committed to the Indian Constitution” this is the core principle of Judiciary but recently we have seen the conflict between Indian Government and the Supreme court over the Collegium system of appointment of Judges. When Central Government is powerful they want to influence all the organ of the constitution so the therefore constitution has made the checks and balances towards all the important organs. Because we have the features of the constitution which has partly federal and partly unitary features.
Whether Judiciary’s collegium is better or Government’s power of appointment is correct this is the issue of debate. We recently seen the criticism on ED, Election Commission, CBI and Reserve Bank of India which is constitutional power given but it was influenced by the Government this is the allegation on Indian Government. So the critics says that now only Indian Judiciary is working independently in current situation.
So in this article we can explain what is the real problem of criticism on Judiciary and try to sort out this issue by some solutions for this problem. Because Indian Judiciary is very important organ of the democratically system of India and it has to be remain independent but it has to be committed to the constitutional principles. Indian Judiciary requires transparent, committed to constitution and representative so therefore there is requirement of reforms in selection of Judges in Supreme Court and High Court.
What is Collegium System in India ? –
As per Indian Constitution Article 124(2) Supreme Court Judges appointed by the President of India and Article 217(1) High Court Judges Appointed by the President with consultation of Chief Justice of India and Governor of the state. The Chief Justice of India and four senior most Judges of Supreme Court are the Collegium for selecting the Judges for appointment of Judges in the Supreme Court.
This collegium system begins from 1998 where third case decided by the Supreme Court regarding collegium system & established the collegium system instead of earlier government appointment was made with senior most judges were appointed as Chief Justice of India and other Judges of Supreme Court. The main reason of introducing Collegium system by the Supreme Court because of avoiding the influence of Indian government.
Whether collegium system is better solution of appointment Supreme Court Judges is debatable issues but earlier system of appointment was also not perfect either. Therefore there is requirement of reforms in Judicial appointment specially in Supreme Court Judges and High Court Judges. Below that their is exam system for selecting the Judges so why not this system apply for the supreme court and High Courts.
Origin of Collegium System in India –
1950 – 1973 the senior most Judges appointed in the Supreme Court and the Government of India has the power of appointment of Judges but in 1973 Justice A. N. Ray appointed as a Chief Justice of India by superseding the other senior judges. 1977 again Justice Mirza Beg appointed as a Chief Justice by superseding the 10 senior most judges of the supreme Court. This is period of India Gandhi Government and Emergency where government influence on the Supreme Court was highlighted by the critics.
The interpretation of word “Consultation” in Indian Constitution about appointing the judges were made by the Supreme Court in 1982 named S.P. Gupta case. Where Judiciary power of recommendation of judges curtailed by interpreting the meaning of the word consultation in the Constitution about judges appointment. The S.P Gupta case judgement reversed by the Supreme Court in 1993 and Supreme Court Judges consultation was mandatory for the President to appoint the Judges.
The Supreme court decision in this case was that the chief Justice of India and two other senior Judges of Supreme Court were the advisory to appointment of Judges to the President. This was the 9 Judge bench decision who turnover the earlier decision of appointment of Judges dispute which was decided by the 7 Judges Bench. In 1998 the third case related to appointment of Judges were came in to the Supreme Court where the real Collegium system of Judges appointment were established .
Controversy over Collegium System ?-
Recently Law Minister Kiran Rijiju publicly criticized the Indian Judiciary for non transparency and non representative character and also in the Parliament. In 2015 the Indian government introduced the 99 amendment regarding NJAC to appointment of the Judges in the Supreme Court and High Court. This enactment not resisted in the scrutiny of Supreme Court and it was declared unconstitutional by it.
Pendency of cases in the Supreme Court and after establishment of the collegium system the appeal cases from the south has became lesser because they thought that their representation is not in the Supreme Court. Most law experts given advice to formation of second bench of Supreme Court in south region, but it was not happened. Although we have seen the influence of political power over judiciary in past which is not good for the democracy but collegium system also not worked positive for the democracy either.
Therefore the reforms in the appointment of the judges in the Supreme Court and High Courts is very crucial. Nepotism and representation is the main cause of criticism of Indian judiciary specially in the Supreme Court and High Courts. There is exam conducted for district level Judges by the government but there is no exam for Judges appointment in the Supreme Court and High Courts.
How the collegium system works in India? –
The Chief Justice of India is head of the Collegium system of the Apex Court i.e. Supreme Court of India and the Chief Justice of the States headed Collegium system of the states. The Supreme Court Collegium system comprises with four other senior most judges of the Supreme Court and for the High Courts Chief Justice of State and two other senior most judges. This conclusive recommendation list presented with Central Government as a formality.
- Appointment of Chief Justice of India
The Recommendation of the Chief Justice of India is decided by the outgoing Chief Justice of India and this recommendation always been criteria of seniority of the Judges. The President of India as a administrative head of the Indian Constitution appoints the Chief Justice of India for the Supreme Court of India.
- Appointment of Other Judges of the Supreme Court
The Chief Justice of India and the senior most judges if the Supreme court i.e. Collegium system decided the list of appointment of the other judges from the High Courts of states including consultation with other senior judges of the Supreme Court. The Consultation of every Judges always been in written form submitted to the Law Minister of India. The Law Minister submitted this list to Cabinet head i.e. Prime Minister of India and Prime Minister submitted this list to the President of India for final approval with their signature.
- Appointment of Chief Justice of High Courts & Other Judges
The appointment of High Court Judges is recommended by collegium of High Court which is submitted to state government. The High Court Collegium is made with Chief Justice of the state with two seniors most Judges of that High Court. The State Government gives this list to Government of the state to submit this list to central government. The central Government send this list to Supreme Collegium for finalization with intelligent report of every Judges. After finalization of this list sent to President for approval with signature.
This Collegium system only works for Supreme Court and High Courts of the states below that the appointment of the Judges is made by Judicial exam. The Judges of Supreme Court and High Courts comes with district judges and from the 10 years’ experience practicing Advocates.
What is National Judicial Appointments Commission? –
After 2014 BJP Government introduced NJAC reform the judicial appointment of Supreme Court and High Courts Judges but it was challenge in the court some individual petitioner with Advocates on Records in Supreme Court who lead the petition. The 99 constitutional amendments were made under the Constitutional Amendment Act & NJAC Act 2014 made with ratification of 16 state legislation.
The National Judicial Appointment Commission consisted with The Chief Justice of India, two senior Judges of the Supreme Court, Law Minister of India with two eminent persons nominated by committee who was lead by Prime minister of India with Chief Justice of India, Leader of Opposition. This committee would have been nominated the Judges on the basis of merit. But the Supreme Courts main concern was politicization of Judiciary which was threat to democratically system.
Like Union Public Service Commission, the National Judicial appointment Commission would have been worked, but courts concern was that Judicial system is protector of Constitution and constitutional rights of the citizens. Most important thing is that most of the matters comes in the Court for proceeding where central government and state government is the one party therefore it is very dangerous for Judiciary to comes under control of Central Government and the States Government. So, this case decided by the 4 against 1 Judge bench unconstitutional to NJAC and Collegium system is better than it.
Features of Collegium System in India –
- The Collegium System is a system of appointment in Supreme Court and High Courts Judges.
- The Collegium system is consisted of the Chief Justice of India and four other Senior Judges for the Supreme Court and for the High Courts of the states is Chief Justice of India and two other senior Judges of the concerned High Court.
- In the period of emergency 1975-1977 we have seen the Judicial Activism where whole Judicial system fought for their Independence and tried to establish their own collegium system in Judiciary.
- 1982 the famous case of Judicial collegium court said that consultation does not mean concurrence therefore Judicial views only consider as consultation does not veto power of Judiciary.
- The second famous case of collegium system held in 1993 where earlier decision was reversed and the Chief Justice of India and two other senior Judges shall veto power to consultation for the President for the Judges.
- The Appointment of Chief Justice of India decided on seniority base from that period from the President only.
- The third case of collegium system where current collegium system is still working which is consisted of the Chief Justice of India and four other senior Judges of the Supreme Court.
- The Judiciary is the only Institution in the Indian Democracy who have veto power for appointment of their own Judges otherwise all the institutions in the constitutional body has checks and balances over each other.
- The collegium system is criticized by its absolute power character but there is no other better solution to this system because political influence over Judiciary is very dangerous to democracy.
- 2014 Central Government introduced NJAC with the Constitutional amendment Act with 16 states legislation approval, but the Supreme Court declared unconstitutional on the basis of independence of Judiciary.
Global Procedure of Judicial Appointment –
- Judicial Appointment in United States of India
In the United States of America the President has the power of nominating the Federal Court Judges with House of Senate must confirm it. This mean the Judicial appointment in United State of America is politicized but different between India and America is that America is far developed country compare to India with their maturity of democracy 250 years.
- Judicial Appointment in United Kingdom
In the United Kingdom 2005 House of Lords replace by the supreme Court and the power of appointment of Judges shifted from Lord Chancellor to Judicial Appointments Commission. The Judicial Appointment Commission consisted of barristers, Judges, laypeople, solicitors and magistrates. Though Lord chancellor has the residual power for selecting or rejecting the Judges on the basis of merit. The British Judiciary is oldest in the world with ideal democracy therefore citizen of United Kingdom is far better aware of democracy and their rights.
Critical Analysis of Collegium System in India –
Recently we have seen the Law Minister of India criticized Judiciary on various platforms publicly for transparency and accountability. Various High Court Judges and Journalist who seen the inner politics of appointment of Judges says that more than 100 families exchange Supreme Court and High Court Judges positions. Pendency of cases is the another overall issue of Judiciary which is criticized by social activist which denies the rights of justice due to the delay of justice.
The Collegium system established due to the politicization of Judiciary which is true but the collegium system is not the solution for this which affects the credibility of the Judiciary. There is require the transparency in appointment of Judges and accountability over all the effects of Judicial decision taken. The Central Government definitely try to influence the Judiciary with controlling their appointment but collegium system is not the solution for this. In 2014 Indian government introduced NJAC which was turndown by the Supreme court but the government should have been try to reform it as per the Supreme court.
The another serious criticism on Indian Judiciary is representation of Judges in the Supreme Court and High Courts. Where most of the Judges are of the upper castes and presence of women judges are very less. There is no answer for these allegations from the present Judicial system. The representative Judiciary is very crucial in democracy where decisions are rely on where the Judges came from in case by case circumstances. There is no second office of Supreme Court in South region who have always believe that influence of northern region over Indian Judiciary.
When Government is in majority the Supreme Court always in defense and when the Government is in just alliance party government then Supreme Court always in aggressive mode. This is not true in every situation but this is experience of past history of shorter period of Indian democracy. We have accepted the democracy of western model of social firstly and after 1990’s capitalist model of democracy where all these countries are rich and developed. The awareness of the citizens towards democracy and their rights are much higher than India so they control their system by social activism.
In India educated people are illiterate about politics and social awareness because our education system always teach us professional education which is for living our financial life better. We are not understand the importance of citizens rights and duties also with how to control the system of democracy including Judicial system. We have seen the Judges came with press conference which shows the supreme power of the citizens. Therefore Collegium system is better in this situation where Indian Politics is dominated over citizens.
In the Judicial system merit is not the only basis of selecting the Judges because when meritorious person not always comes with ethical principles. The Judges of Supreme court and the High Courts are comes from the society where there is some influence though process of every Judges towards their society. Therefore the decision making becomes critical for those communities who’s representation is not there. Women’s representation requires much more in the Supreme Court and the High Courts where they better understand the cases related to the women’s problem than men Judges.