Stalemate over Appointment of Judges in Indian High Courts and Supreme Court

The recent stalemate over the appointment of judges in the high courts and the Supreme Court of India has triggered unsavoury exchanges between the Union government and the Supreme Court. The latest development is the apex court pinpointing that its striking down the amendment to the Constitution providing for a National Judicial Appointments Commission (NJAC) is behind the Union government’s delay in the appointment of persons recommended as judges by the collegium in the higher judiciary.

Background

As per Article 124 (2) of the Indian Constitution, the President appoints all judges, except the Chief Justice of India, after consulting him/her. The Constitution-makers were clear that the process belonged to the executive’s domain. The Constitutional Assembly indeed discussed, and rejected, the idea of giving the judiciary a major say in it after chairman of its drafting committee Dr B.R. Ambedkar called it a “dangerous proposition”. It amounts to transfer to the Chief Justice the authority to veto the President or the government of the day, he pointed out.

The Collegium System

However, in the Second Judges case in 1993, the Supreme Court expanded the interpretation of the word ‘consultation’ and set up a mechanism of a collegium comprising the Chief Justice of India (CJI) and two senior-most judges of the apex court to recommend the names. It made it mandatory for the government to accept such nominations. The court found that it must act in “protecting the integrity and guarding the independence of the judiciary”. It ensured that the CJI has primacy in matters of appointment and transfers and ruled that the executive cannot have an equal say in the matter.

The National Judicial Appointments Commission (NJAC)

The NJAC was introduced after amending the Constitution in 2014. It broad-based the selection procedure as the commission, headed by the Chief Justice of India, would have had two senior-most judges of the Supreme Court, the Union law minister, and two eminent persons. However, the court struck it down, holding it violative of the basic structure of the Constitution. It also violated principles of independence of the judiciary and separation of powers, the court held.

Criticism of the Collegium System

The biggest criticism against the collegium system is that it goes against the spirit of the Constitution and introduces an opaque process in the selection of judges. The public has little knowledge about why a person is nominated or rejected. And when the government contributes its own layer of secrecy by holding back names without citing reasons, the opacity becomes total. This is one of the reasons for the recent stalemate over the appointment of judges.

Delays and Impatience

The delays in appointment of judges are stopping several people from even accepting an invitation to join the bench. Neither the Supreme Court nor the government has a mandate to continue with the present messy situation. It must be solved in the spirit of democratic values; but impatience on either side will not help the process.

Synopsis

The stalemate over the appointment of judges in the high courts and the Supreme Court of India is a complex issue that needs to be addressed in a transparent and democratic manner. The collegium system, while ensuring the independence of the judiciary, has been criticized for its opacity and lack of accountability. The introduction of the NJAC was an attempt to address these issues, but it was struck down by the Supreme Court. The government and the judiciary need to work together to find a solution that is in line with the spirit of the Constitution and ensures the independence and integrity of the judiciary.

Written by IAS POINT

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