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12th November 2022 (9 Topics)

Delay in Judicial Appointments and Vacancies

Context

The Supreme Court lambasted the Centre for withholding names recommended or reiterated by the collegium for judicial appointments, despite a large vacancy in the Courts.

Background

  • The collegium system evolved out of a series of judgments of the Supreme Court that are called the “Judges Cases”.
  • The collegium came into being through the interpretations of the relevant provisions of the Constitution that the Supreme Court made in the below-mentioned Judges' Cases.

Evolution of the System:

  • First Judges Case (1981): It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
  • Second Judges Case (1993): SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
  • It 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 five-member body, comprising the CJI and four of his senior-most colleagues.

What is the Collegium system?

  • A collegium is a group consisting of the Chief Justice of India and the four senior-most judges of the Supreme Court that decides the appointment of judges to the apex court.

What is the role of Government in the judicial appointments?

  • The government has a role only after names have been decided by the collegium.
  • The role of the government in this entire process is limited to ‘getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
  • The government can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound to appoint them.

What is the Supreme Court's argument for Governments’ involvement?

  • Lack of Consensus makes the process complicated and delays it which can hinder judicial functioning.
  • Political Appointments were preferred which made the judgments biased to the Centre’s way.
  • Unjustified Inquiries and objections by the Government make the task tedious for the judges fulfilling the criteria for appointment as Senior Judges in Courts.

Appointment Procedures:

For Judges of Apex Court

For High Court CJ

  • For other judges of the SC, the proposal is initiated by the CJI.
  • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
  • The consultees must record their opinions in writing and it should form part of the file.
  • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
  • The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States.
  • The Collegium takes the call on the elevation.
  • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
  • The proposal, however, is initiated by the outgoing Chief Justice of the High Court in consultation with two senior-most colleagues.
  • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

On what grounds has the collegium system been criticized?

  • On account of Transparency: The system is non-transparent since it does not involve any official mechanism or secretariat.
  • No definite Eligibility: it is seen as a closed-door affair with any prescribed norms regarding eligibility criteria or the selection procedure.
  • Lack of Consensus and Consultation: There is no public knowledge of how and when a collegium meets, and how it takes its decisions. There are no official minutes of collegium proceedings.

 

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