Appointment of judges to the supreme court

General Studies Paper 2

Context: The government recently cleared the appointment of two judges to the Supreme Court.

• The two new apex court judges are Justice Prashant Kumar Mishra and V. Viswanathan, who is a direct appointment from the Supreme Court Bar.

Appointment of Judges

• Collegium system:
  • Judges of the High Courts and the Supreme Court are appointed by the provisions mentioned in Articles 124 and 217 of the Constitution of India.
    • Articles 124 and 217state that the President shall appoint judges to the Supreme Court and high courts after consultation with the Chief Justice of India and other judges.
  • Composition:
    • The Supreme Court Collegium consists of the CJI and four senior-most judges of the apex court.
    • High Court Collegium consists of the Chief Justice of the High Court and two senior-most judges of that particular court.
  • Recommendations: 
    • Crucially, recommendations made by the Collegium are binding: while the government can flag concerns and ask the Collegium to reconsider, if the Collegium chooses to reiterate its recommendations, they become binding.
  • Significance of the system:
    • The collegium system was created to maintain the basic structure of the Constitution by keeping the judiciary independent.
    • It was also to ensure that the Chief Justice of India does not impose his or her individual opinion regarding the appointment of judges, but rather it is a collective opinion of the entire body.

Issues with the current collegium system

• The collegium system does not provide any guidelines or criteria for the appointment of the Supreme Court judges and it increases the ambit of favouritism.
• In the collegium system, there are no criteria for testing the candidate or for doing a background check to establish the credibility of the candidate.
• The absence of an administrative body is also a reason for worry because it means that the members of the collegium system arenot answerable for the selection of any of the judges.

About the National Judicial Commission (NJAC)

• Significance: 
  • The need for the National Judicial Appointment Commission was aroused because many jurists criticised the existing collegium system, stating that India is the only country where judges appoint themselves and have the power of determining their transfers.
• Statute for NJAC:
  • The NJAC was proposed via the National Judicial Appointments Commission Bill, 2014.
    • In order to have a more transparent system, the National Judicial Appointment Commission Act was enacted.
  • The commission was established by the 99th Constitutional Amendment Act, 2014.
  • The Act proposed that the members of NJAC would be composed of members from the legislative, judicial, and civil society.
• Apex Court’s action:
  • In a collective order, in 2015, the Supreme Court by a majority of 4:1 struck down the NJAC Act, 2014.
  • The NJAC Act was termed unconstitutional citing it as having affected the independence of the judiciary.

Issues with NJAC

• SC’s previous action:
  • The concept of NJAC has come under consideration of the Supreme Court three times in 1993, 1998 and 2016.
  • All three times, while giving importance to independence of the judiciary, the Supreme Court dismissed the framework of the NJAC.
• Issue of political influence:
  • It is cited by critics that the judiciary is the only independent institution left in the country.
    • It is harmful to allow political influence over it.
  • It is also being stated that the collegium system is functioning smoothly.
    • There is scope for improvement, but not for any political interference. The central government should in no manner be allowed to control the appointment of the judiciary.
  • Culture of reciprocity:
    • The involvement of the legislature in the appointment of judges might lead to the creation of a culture of ‘reciprocity.’
    • Meaning that judges might have the feeling of having to pay back the political executive as a consideration for their appointment to the post of judge
  • Constitutional impossibility:
    • The recent bill was opposed in the Rajya Sabha, calling it a “constitutional impossibility”.

Way Ahead

• Speedy appointment of judges:
  • There is an urgent need to improve the judge-to-population ratio to reduce the workload of judges.
• Guidelines by Union government:
  • Centre had suggested measures like increasing the number of working days of courts, establishment of fast track courts and Indian Courts and Tribunal Services (icts) to increase the productivity of the court system.
• E-platforms:
  • Improve judicial infrastructure through the use of e-platforms and setting up of more courts.
  • India has launched the e-Courts National portal ecourts.gov.in of the ecourts Project.
• Strengthen the Alternative Dispute Resolution (ADR) mechanism:
  • It uses modes like Arbitration, Mediation and Conciliation.
  • It uses a neutral third party who helps the parties to communicate, discuss the differences and resolve the dispute.
  • It offers to resolve all types of matters related to civil disputes, as explicitly provided by the law.
• Counseling:
  • Disputes can be settled at the pre-litigation stage through counseling.