Supreme Court gets two new judges

Context: In exercise of the powers conferred by clause (2) of Article 124 of the Constitution of India, the President has appointed Shri Justice Sanjiv Khanna, judge of the Delhi high court and Shri Justice Dinesh Maheshwari, chief justice of the Karnataka high court, to be a judge of the Supreme Court of India. Their names had been recommended by the collegium.

What is the collegium system of appointment of judges?

The collegium system was commissioned by two judgments of the Supreme Court in 1990s. It has no mention in the original Constitution of India or its successive amendments.

In the Third Judges case (1998), the Supreme Court opined that the chief justice of

India should consult a collegium of four senior most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.

Eligibility to become a Supreme Court judge:

To become a judge of the Supreme court, an individual should be an Indian citizen. The norms relating to the eligibility has been envisaged in the Article 124 of the Indian Constitution. In terms of age, a person should not exceed 65 years of age. The person should serve as a judge of one high court or more (continuously), for at least five years or the person should be an advocate in the High court for at least 10 years or a distinguished jurist.

Is the collegium’s recommendation final and binding?

The collegium sends its final recommendation to the President of India for approval. The President can either accept it or reject it. In the case it is rejected, the recommendation comes back to the collegium. If the collegium reiterates its recommendation to the President, then he/she is bound by that recommendation.

NJAC and other efforts to reform:

The collegium system has come under a fair amount of criticism.

In 2015, the parliament passed a law to replace the collegium with a National Judicial Appointments Commission (NJAC). This was struck down as unconstitutional by the supreme court, in the Fourth Judges’ Case, as the new system would undermine the independence of the judiciary.

Putting the old system of the collegium back, the court invited suggestions, even from the general public, on how to improve the collegium system, broadly along the lines of – setting up an eligibility criteria for appointments, a permanent secretariat to help the collegium sift through material on potential candidates, infusing more transparency into the selection process, grievance redressal and any other suggestion not in these four categories, like transfer of judges. This resulted in the court asking the government and the collegium to finalize the memorandum of procedure incorporating the above.

Need for reforms:

• Collegium system has its concerns as absolute power is not desirable in any branch of the State.
• Diversity in consideration such as geography, gender and ethnicity should all “legitimately weigh in the balance” when appointing judges from a pool of potentially meritorious candidates. The Collegium system is unable to cater to this need of diversity in the judicial system.
• It is seen as a closed-door affair without a formal and transparent system. Judges, hopeful of going higher, have to please the members of the collegium.
• This system overlooks several talented junior judges and advocates.
• Sometimes, collegium gets obstructed, when old rivalries between its members see each other’s favourites getting vetoed.
• Sometimes collegium meetings become examples of bargaining within the collective, and consensusemerging from a division of the spoils.

Reforms needed:

The need of the hour is to revisit the existing system through a transparent and participatory procedure, preferably by an independent broad-based constitutional body guaranteeing judicial primacy but not judicial exclusivity.

The new system should ensure independence, reflect diversity, demonstrate professional competence and integrity.

The system needs to establish a body which is independent and objective in the selection process.

Setting up a constitutional body accommodating the federal concept of diversity and independence of judiciary for appointment of judges to the higher judiciary can also be thought of as an alternate measure.

As of now, instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appointment in order of preference and other valid criteria.

Sources: the hindu.