This article is written by Shreya Lal, LLB student of KLE college of Law , Mumbai during her internship with LeDroit India.
This article deals with the procedures for appointing judges in the judiciary. The appointment of judges is an important aspect of judicial independence, which requires judges to be free from any direct or indirect influence of political or non-political bodies in the administration of justice. The independence of the judiciary is very important so that judges can be impartial and carry out their duties effectively without fear and favoritism. The freedom of judges is closely linked to the appointment of judges, since in most countries in the world the appointment of judges is made by the head of state. The appointment by the Head of State in consultation with the Lord Chancellor was essentially in line with the British method adopted in the Constitution of India provided for in Section 124 of the Constitution of India which states: Each Justice of the Supreme Court is appointed by the President by order under his Handwritten and sealed after consultation with the Justices of the Supreme Court and Supreme Court in such States as the President shall think necessary for the purpose, and shall hold office until he reaches the age of sixty-five: Provided that in the case of the The Chief Justice of India will always be consulted on the appointment of a judge other than the Chief Justice.
According to this article, the judge must be appointed by the President in consultation with the Chief Justice of India and the senior judges of the Supreme Court. The reason for consulting the Chief Justice of India and the Supreme Court Justices is that they are well qualified due to their long tenure.
But in Supreme Court Advocates On Record Association v. Union of India, popularly known as THREE JUDGES CASE, the concept of Attorney System was developed.
Inception of the System
Origin of the Collegium system: The word Collegium is not mentioned anywhere in the Constitution, it came into force by court promulgation. The origin of the concept for setting up the system dates back to the recommendations of the Indian Bar Association made on October 17, 1981 during a national seminar for lawyers in Ahmedabad. It was recommended that there should be a collegiate system for the appointment of Supreme Court Justices by the following authorities: The Chief Justice of India Five Senior Justices of the Supreme Court Two Representatives representing the Council of Lawyers of India and the Bar Association of the Supreme Court. . The recommendation of such a collegium system must be binding on the President, although he may request that it be reconsidered for specific reasons. Later, on December 30, 1981, Supreme Court Justice Bhagwati focused on the need in the case of S.P. Gupta v Union of India. Bhagwati J went deeper into the meaning of the word consultation and supported Krishna Iyer J’s views expressed in Union of India v. Sankalchang Himmatlal Sheth: “We agree with what Krishna Iyer, J. Said in the case of Sankalchan Sheth: Consultation differs from consent. They can argue, but they can disagree; advise but may not agree”. This is reminiscent of the views of Dixon CJ of Canada who had said: “[The Prime Minister and Attorney General, who have the final decision on appointment] feel free to consult me, I feel free to give opinions that You are free to take or not to take”. However, in the case of the Chief Justices, Bhagwati J. Expressed his dissatisfaction with the “existing way of appointing judges in India, in which the power to select judges was vested exclusively in “a single person” (the President), whose election “may be wrong or inappropriate” and “may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations”. Therefore, he considered it unwise to waive the power to appoint particularly important and sensitive appointments, such as Accordingly, he proposed the following: There should be a college to make recommendations to the President on the appointment of a Supreme Court Justice or Supreme Court Justice. The recommendation body needs to be broader and broader interests need to be consulted.
Merits and Demerits of the System
The college system increases secrecy. Ruma Pal, a former Supreme Court Justice of India, said the system is one of the country’s best-kept secrets. It is kept secret within the four walls of the body to ensure the correct and efficient functioning of the institution that overshadows the system. The collegiate system makes the judiciary independent of politics. It separates the judiciary from the influence of the executive and the legislature. With government influence, the judiciary can operate without fear or favoritism. This ensures that the doctrine of the separation of powers is regulated. There are many cases where Supreme Court justices have been transferred due to political influence. The power to transfer judges conferred on the executive body would thus undermine the independence of the judiciary and also prevent it from functioning effectively. For fair operation, the collegiate system would be the best as it guarantees independence and allows the judge to carry out his duty without fear or interference and influence. The law enforcement body is not an expert or has no knowledge of the judge’s requirements to the CJI. The Collegium system ensures that the merit sits in the position of Justice of the Supreme Court.
This system provides no guidelines for the selection of candidates for the post of Supreme Court Justice, leaving room for nepotism and favoritism. Therefore, deserving candidates cannot be appointed judge. The college system has no criteria for evaluating the candidate, nor do they investigate the background of the candidates and are not accountable to any administrative authority that could result in the wrong selection of the candidate while the right candidate is overlooked. There are already many cases pending before the court, they have limited time, the power given them to appoint would be a burden on the judiciary. This system violates the principle of checks and balances. In India, three organs work partially independently, but balance and control the excessive forces of one organ. As a judicial power, it depends on the executive power for the appointment of the judges, in consultation with the CJI and senior judges of the SC; but this system gives immense power to the judiciary to appoint judges, for whom control of excesses of powers would not be guaranteed and abuses of powers can be committed. This system leads to a lack of transparency in the judicial system, which is very detrimental to the regulation of public order in the country.
Some suggestions for the System
The appointment of judges should not be delayed or postponed because judges are not ready. The provision of judicial positions is the task of every state organ. Background checks during appointments have been found to be flawed and such on-the-spot checks are deliberately made public to cast doubt on the integrity of candidates. It must also be ensured that the machines are not misused to carry out reliability checks. Establishment of a well-resourced independent secretariat for the appointment of judges and a database of suitable candidates. So that vacancies are known in advance for faster judicial resolution. Both the judiciary and law enforcement must work cooperatively to ensure that vacancies are filled quickly, with the national and public interest as a priority.
Conclusion
All mechanisms for appointing judges can have some advantages and disadvantages and therefore no single system can be considered the best system. Nevertheless, in order to maintain public confidence in the appointment system and to ensure the independence of the judiciary, the commission system is perhaps a very effective mechanism for the appointment of judges. However, in order for this mechanism to be effective, the commission must be representative and composed of members of the executive, legislative, judiciary, legal professionals and lay members. In addition, it must be ensured that the Commission uses a transparent and publicly verifiable system. In this regard, the composition and system of work of the South African Judicial Service Commission could be an acceptable model. Such a mechanism can be very effective in ensuring that the best qualified individuals are appointed to judicial positions. However, the college of judges has not satisfactorily performed its task of recommending candidates for appointment to judges of higher courts. The College does not follow any guidelines or criteria in the performance of its duties. Its decisions “are secretive, mysterious, and enigmatic.”68 In Iyer’s words, the Collegium was “procrastinating, arbitrary, and tainted with favoritism, and the current collegial elitism is the vanishing point of democratic values in the pyramid of justice.’ However, the Government of India made an unsuccessful attempt in 2002 to give the Collegium system of appointing judges a proper burial by establishing a National Judicial Commission with predominantly judicial members. The draft Constitution (Amendment 98) tabled in the Lower House of Parliament establishing the Commission eventually lapsed. The Union Ministry of Justice is currently (as of May 2012) preparing a bill establishing two Judicial Commissions in India, one for the appointment of Supreme Court Justices and one for the appointment of Supreme Court Justices. Separately, a written petition questioning the legitimacy of the establishment of the college of judges is pending decision in the Supreme Court of India. It is therefore to be expected that within a short period of time two Judicial Commissions will be set up in India to ensure that the issue of appointing judges to the High Courts of India does not result in political conflicts involving biased judges bound by the appointing authority or feel committed to her. In this context, it is worth quoting the immortal words of former Chief Justice of Australia Sir Harry Gibbs: Judicial Commissions, Advisory Committees and consultation procedures [with the Chief Justice] will be useless if they do not exist, among politicians of all parties, an understanding that the interest of the community requires that neither political or personal patronage nor a desire to appease part of a society should play a role in the appointment of judges.
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