Recently, the Supreme Court asked the government to clarify on the status of 55 recommendations made by the Collegium for judicial appointments to various High Courts.
System of Judges appointment in India
- Constitutional mandate: Article 124 President shall make SC Judges appointments after consulting with the Chief Justice of India (CJI) and other SC and HC judges as he considers necessary.
- While for HC judges appointment President (under Article 217) should consult the CJI, Governor, and Chief Justice of the High Court concerned.
- Collegium system: committee of the Chief Justice of India, four senior judges of theSupreme Court and three members of a high court (in case of appointments in the said high courts) take decisions related to appointments and transfer of judges in the Supreme Court and High Courts.
- The three judge cases have come from 1981 to 1998 which sets the collegium system for appointing judges.
Significance/Need of transparency in judicial appointment
- Enhancing the Integrity: Transparency as well as public confidence in the process.
- RTI compliance: Placing criteria in making judicial appointments in public domain fulfil purpose of Section 4 of the RTI Act
- Promotes accountability: combat corruption, and help to eliminate arbitrariness in judicial appointments.
- Public realm: Justice D.Y Chandrachud, the basis for the selection and appointment of Judges to the Higher Judiciary must be defined and placed in the public realm.
Issues in Judges Appointment/Collegium system in India
- Judges appointing judges: goes against principle of separation of powers between executive and judiciary and principle of check and balance by one branch on another, which is basic structure of constitution. It shows judicial supremacy over the other branches.
- Uncle Judge Syndrome: It is observed that within the high court many of the Judges and advocates have blood relation between them.
- Corrupt practices: shall not only be independent of political influences but also from their very own influences.
- Closed- door affair: without a formal and transparent system, created apprehensions about the process of appointment.
- Administrative burden: of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism of checking personal and professional backgrounds of prospective appointees.
- Promotion of mediocrity: The limitation of the choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.
Steps to ensure transparency in judicial appointments
- Information disclosure in public domain: SC collegium has taken decision to disclose the reasons for its recommendations which lowers the culture of secrecy surrounding judicial appointments.
- Database updation: A complete and periodically updated database of potential candidates must be made accessible to the public.
- Public Inputs: with regard to shortlisted candidates while providing immunity from laws of contempt & defamation and confidentiality to citizens.
- Eligibility Criteria for Appointment: to judge the performance and suitability must be formulated objectively and must be made public. The reasons for appointment or non- appointment can be only understood well in the context of such a criterion.
- Power Balance: Law Commission, in its 2008 and 2009 reports- Parliament should pass a law restoring the primacy of the CJI, while ensuring that the executive played a role in making judicial appointments.
- Involvement of all three branches of Government: selection process has to be transparent and fair, only possible by involving other two branches i.e. Executive and Legislature would strengthen judicial independence.
- Law Commission of India 230th Report recommended that the Judges, whose kith and kin are practicing in a High Court, should not be appointed in the same High Court.
- A complete record of video/audio of collegium deliberations.
The judiciary carries the trust of the people, which must be upheld and strengthened with a transparent appointment procedure.
- National Judicial Appointment Commission (NJAC): 99th Constitutional Amendment Act
- Draft Memorandum of Procedure, 2016
Issues with Contempt of court
- Stifle freedom on speech and expression A 19
- Definition of criminal contempt extremely wide and can be easily invoked for multiple reasons
- Against natural law as the judiciary itself decides the cases of contempt against it
- Against global practise as not in other countries
Way forward
- Make it more objective and clear
- Balance between freedom of speech and expression and independence of judiciary
- Independent panel to check misuse of contempt
- Punishment for contempt should be carefully thought beyond fines or jail term
It is necessary to distinguish between constructive criticism and malicious statement and test for contempt needs to be evaluated. It should not be used to quash reasonable criticism.
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