Why in news?  

Chief Justice of India D.Y. Chandrachud agreed to list in due course a writ petition to reconsider the collegium system of judicial appointments to the Supreme Court and the High Courts.

Highlights:

• The petition sought the revival of NJAC that gave the government an equal role along with the judiciary in the appointment of judges to the constitutional courts before it was struck down by the Supreme Court in 2015.

The battle for Judicial Appointment

• Article 124 deals with appointment of Supreme Court judges, while Article 217 deals with appointments of high court judges.
• Both these provisions say that the judges are to be appointed after “consultation” with appropriate judges of the apex court/the Chief Justice of India.

How Are Judges of the Supreme Court Appointed and Removed?

• First Judge case(S.P. Gupta Vs. Union of India) : Central Government had the final say, and could reject the views of the judges when it came to deciding who would be appointed
• Second Judges Case: The word “consultation” read as “concurrence” as judicial independence was part of the Basic Structure of the Constitution, and this could only be protected if judges had primacy when it came to appointments.
• A new system of appointments was formulated, the CJI was to have primacy for judicial appointments, with the consultation of the next two senior-most judges of the Supreme Court. Thus was born: the Collegium.
• Third Judges Case: CJI could only recommend judges for appointment after consultation with the other four judges, and any candidate has to be supported by a majority of the Collegium.

Who are appointed under collegium?

• For Supreme Court appointments, the Collegium was also expanded to include the CJI and the next four (up from two) senior-most judges and high court judges

How did collegium functioned ?

• Once the Collegium makes a recommendation to the President, he can either accept it or send it back to the Collegium for reconsideration.
• If the Collegium once again recommends that candidate for appointment, the President is boundby the recommendation.
• The final position ,the actual decision-making power when it comes to appointment of Supreme Court judges rests with the Collegium.

THE NJAC OF 2014

• It was a proposed body which would have been responsible for the recruitment, appointment and transfer of judicial officers, legal officers and legal employees under the government of India and in all state governments of India.
• The commission was established through the 99^th constitution amendment in August 2014

The composition:

• The Chief Justice of India
• The two senior-most judges of Supreme Court
• The Union Law Minister
• Two ‘eminent persons’
• Eminent persons : Nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of Opposition in the Lok Sabha, and are not eligible for re-nomination.
• One of the ‘eminent persons’ had to be from a Scheduled Caste, Scheduled Tribe or Other Backward Caste.

Why did the supreme court strikes down the NJAC in 2015?

• The NJAC Act would compromise the principle of independence of the judiciary guaranteed under the existing collegium system. The basic structure of the Constitution enshrines that the judiciary is solely responsible for the appointment of judges.
• Judicial primacy when it comes to appointments (ie, the primacy of the view of the CJI in consultation with other senior judges) is essential to independence of the judiciary.
• This system takes away primacy of the judiciary in judicial appointments, since only half its members are judicial members. Therefore it seeks to alter the Basic Structure of the Constitution.
• The applicability of veto power by the two eminent personalities opined that these two persons could together strike out an otherwise valid appointment. They raised doubts regarding the procedure of removal of these two people in case they are found to be abusing their power.
• Future judges appointed under NJAC cannot be expected to be independent-minded if the Union Law Minister is the member of the commission. The presence is a violation of the principle of separation of powers and is therefore also a violation of the Basic Structure.
• No qualifications were prescribed for the two ’eminent persons’, who could end up being overtly political appointments since the CJI was outnumbered in the panel to select them.

What are the benefits of the NJAC Act?

• The proceedings of the collegium are inaccessible to the public and, therefore, it lacks transparency but NJAC involving a smooth and transparent process for the appointment of judges
• The exclusion of the role of the government in appointing the judges is unfair because it disturbs the checks and balances principle. It is further added that in a democratic setup, the executive cannot be completely excluded
• An example of the United States of America was given, where the head of the Executive is conferred with the power to appoint the judges.
• Justice Chelameshwar also supported the inclusion of the Law Minister in the commission, reasoning that the executive with a vast amount of administrative machinery is capable of making enormous and valuable contributions to the selection process.

What are the 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.
• The absence of an administrative body is also a reason for worry because it means that the members of the collegium system are not answerable for the selection of any of the judges
• The ‘Second Judges Case’ established the supremacy of the judiciary over the executive. This system disturbs the principle of check and balance.
• Closer look at the collegium system defines that even though the collegium system is not mentioned anywhere in the Constitution, rather it has evolved over a period of time from different landmark cases.
• Nepotism has been often witnessed in the judiciary due to a lack of criteria for the appointment of judges. It leads to mediocrity due to biases in the judicial setup.

Way Forward

• The matter is very critical and complex because, on the one hand, the judiciary should act independently, but on the other hand, the legislature and the executive cannot be completely excluded.
• The only reasonable solution is to amend NJAC Act in a manner in which the powers of legislature and executive are diluted but at the same time a guideline needs to be formed and the judicial appointment should be carried out in its accordance to ensure the transparency and to give a methodical approach towards the appointment of judges.