General Studies Paper -2
Context: The Justice Yashwant Varma controversy has reignited debates about judicial accountability, the process of appointing judges in India and brought the National Judicial Appointments Commission (NJAC) back into the spotlight.
Evolution of the Judiciary Appointments in India
- Pre-Collegium Era (1950–1973): Initially, Article 124(2) and Article 217 of the Constitution of India granted the President the power to appoint judges to the Supreme Court and High Courts, respectively, in consultation with the Chief Justice of India (CJI) and other judges.
- The executive had the upper hand in judicial appointments, with the President (on the advice of the Council of Ministers) making final decisions.
- First Judges Case (1981) –P. Gupta v. Union of India: The Supreme Court ruled that ‘consultation’ with the CJI did not mean ‘concurrence’ meaning the executive had more power in judicial appointments.
- It allowed greater government interference in appointments.
- Second Judges Case (1993) – Supreme Court Advocates-on-Record Association v. Union of India: It overturned the First Judges Case, and established the Collegium System, giving primacy to the judiciary in appointments.
- The ruling held that CJI’s recommendation, in consultation with senior judges, would be binding on the President.
- Third Judges Case (1998) – Presidential Reference: The composition of the Collegium was clarified:
- SC Judges’ appointments: The CJI and four senior-most judges.
- HC Judges’ appointments: The CJI and two senior-most judges.
National Judicial Appointments Commission (NJAC)
- It was established through the 99th Constitutional Amendment in 2014 to replace the Collegium System with a committee including the executive with judiciary.
- It aimed to make judicial appointments more transparent by involving the executive and eminent persons alongside the judiciary.
- However, the Supreme Court of India, in 2015, struck down NJAC, ruling it unconstitutional, as it diluted judicial independence.
Key Reasons For Revisiting the NJAC
- Concerns Over Collegium System: Lack of transparency; No clear criteria for selection.
- The Supreme Court’s opaque decision-making process in appointments raises concerns about favoritism.
- Legislative Consensus & Judicial Overreach: The NJAC was passed with near-unanimous support in Parliament and ratified by 16 state legislatures, reflecting a broad consensus on the need for reform.
- It was argued that the reinstatement of the Collegium system (after NJAC) was an example of judicial overreach.
- Delays in Judicial Appointments: The long, secretive collegium process leads to delays in filling vacancies, affecting judicial efficiency.
- Executive-judiciary tension; Government delays in approving names.
- Lack of Diversity: The current system has been criticized for not ensuring adequate representation from various sections of society, particularly marginalized communities and women.
- Addressing Case Backlogs: With over 4.4 crore pending cases in Indian courts, judicial vacancies need urgent attention.
- A well-functioning NJAC can help streamline appointments, ensuring a faster selection process and filling vacancies more efficiently.
- Balancing Independence and Oversight: A revised NJAC can ensure that executive involvement does not compromise judicial independence.
- It could be achieved by maintaining a judiciary-dominated body while allowing limited and structured participation from the executive.
Way Forward
- Global Practices: Many democracies involve a mix of judicial and executive inputs in judicial appointments.
- The United Kingdom has the Judicial Appointments Commission (JAC), an independent commission ensuring merit-based appointments.
- Revisiting the NJAC could align India’s system with global best practices while addressing domestic concerns.
- The International Commission of Jurists (ICJ) released a report advocating for a new law to establish a ‘Judicial Council’, aiming for judicial appointments and transfers based on transparent, predetermined, and objective criteria.
- Modifying the Composition of NJAC: Instead of granting excessive influence to the executive, the revised NJAC can include members from the judiciary, executive, and civil society to ensure balanced participation.
- Ensuring Judicial Primacy: While the executive may be given a role, judicial independence should remain paramount by ensuring that judges hold a majority in the commission.
- Transparency Mechanisms: Clear guidelines on appointments, merit-based selection, and reasons for rejections should be made public to avoid favoritism.
- Timely Appointments: A defined timeline for recommendations and approvals should be mandated to prevent delays.
- Inclusion and Diversity: Special emphasis should be given to appointing judges from diverse backgrounds to make the judiciary more representative of society.
Conclusion
- The Justice Varma case underscores the urgent need for judicial reform in India. Revisiting the NJAC could provide a framework for a more transparent and accountable judiciary while preserving its independence.
- As the debate continues, the Supreme Court has an opportunity to lead the way in restoring public trust and ensuring the integrity of India’s judicial system.
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