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Judicial Appointment: a mix of Judiciary + Executive

  • Category
    Polity & Governance
  • Published
    9th Mar, 2022

Context

Appointment of Anoop Kumar Mendiratta as the Judge of Delhi High Court.

Analysis

Who is Anoop Kumar Mendiratta?

  • Anoop Kumar Mendiratta is the first Union Law Secretary to be appointed as a Judge of High Court.
  • He was also the first district judge to be appointed as Union Law Secretary.

Was his appointment as per law?

  • The appointment of Mr. Mendiratta was done after following the required procedure and his name being recommended for the post by the Collegium.
  • Hence he becoming the Judge of Delhi High Court may be considered as unconventional but not unconstitutional or unlawful.
  • Constitutionally there is no bar as such on a serving secretary of the Government of India being appointed as Judge of a High Court.

Why is his appointment in news?

  • Indian polity believes in the principle of separation of powers.
  • Appointment of a member from the executive branch of government to the judicial branch has therefore raised some eyebrows.

What is Separation of Powers?

It is vesting of the legislative, executive, and judiciary powers of government in separate bodies.

This concept was put forward by French Philosopher Montesquieu.

  • Separation of power is considered important so that the members for judiciary can perform their function as per the law and principle of natural justice without getting influenced by those in power.
  • Organizations like judiciary and the executive branch of government carry the weight of people’s trust.
  • And for the sake of safeguarding this trust it is not just important that they carry out their functions in ethical manner, but it is also extremely crucial for the occupants of these high offices to be seen as functionaries that are performing their duties in morally upright way.
  • The occurrence of suspicion, even if this is to a very limited extend, accompanied with the above appointment will dented the confidence of Indian people in both executive and judiciary. This therefore is ought to be avoided.

What is Collegium system?

  • It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
  • Under the system, the collegium decides the following:
  • appointments and elevations of judges and lawyers to the Supreme Court and the High Courts
  • transfer of judges to High Courts and the Apex court

Composition of Collegium

  • SC Collegium: The Supreme Court collegium is headed by the Chief Justice of India and comprises four other seniormost judges of the court.
  • HC Collegium: A High Court collegium is led by its Chief Justice and four other seniormost judges of that court.

The procedure

  • CJI and SC Judges: The President of India appoints the CJI and the other SC judges.
    • CJI: As far as the CJI is concerned, the outgoing CJI recommends his successor.
  • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
  • The Union Law Minister forwards the recommendation to the Prime Minister who, in turn, advises the President.
    • SC Judges: For other judges of the top court, 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.
  • Chief Justice of HC: The Chief Justice of High Courts is appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
  • HC Judge: High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned 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.

Consultation with Judges

  • The constitution also has another condition specific to the appointment of the judges in the High Courts and the Supreme Court.
  • Article 124 (2) mandates the President to consult the judges of the court before appointing a judge in the same court.
  • The ‘consultation’ however did not bind the president in the same way he is bound by the council of ministers and the president’s power to appoint judges before 1973 was just a formality and the appointments were on behalf of the executive government.

Is the system provided in the Constitution?

  • The Collegium of judges is the Supreme Court’s invention.
  • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation. 

What about ‘independence of judiciary’?

  • The Constitution of India has embodied the concept of Independence of Judiciary.
  • However, the appointment of judges in the High Court and the Supreme Court has been left to the President, who works on the aid and advice of the council of ministers.
  • The President shall act in accordance with such advice.
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