Source: The Hindu 

Introduction 

The Constitution of India has specific provisions for appointing judges to the Supreme Court and High Courts. This process has evolved over time through a series of landmark Supreme Court rulings, leading to the establishment of the Collegium system. The National Judicial Appointments Commission (NJAC) was a recent attempt to reform the appointment process, the Supreme Court struck it down  

How does the Constitution of India Deal with the Appointment of Judges and What Is the Role of the Collegium System in This Process? 

• The Constitution of India under Articles 124(2) and 217 deals with the appointment of judges to the Supreme Court and High Courts, respectively. 
•  Article 124(2) states that "every Judge of the Supreme Court shall be appointed by the President" after "consultation" with the judges of the Supreme Court and the high courts, "as the President may deem necessary." 
• Article 217 states that a Judge of a High Court shall be appointed by the President in consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. 
• For the appointment of the Chief Justice of India (CJI), it has been strictly by seniority ever since the supersession controversy of the 1970s. The President appoints the CJI based on this practice. 
• In practice, the Union Law Minister would, at an "appropriate time," seek the recommendation of the outgoing CJI on his successor.  
  • Once the CJI recommends a name, the Law Minister forwards the communication to the Prime Minister, who then advises the President on the appointment. 
• The Collegium system, which is the system of appointment and transfer of judges, has evolved through judgments of the Supreme Court and is not based on an Act of Parliament or a provision of the Constitution. 

How did the Supreme Court's Rulings in the First, Second, and Third Judges Cases Evolve the Process of Judicial Appointments in India? 

First Judges Case (1981): 

• The Supreme Court ruled that the "consultation" of the Chief Justice of India (CJI) on judicial appointments and transfers does not mean "concurrence". It only means an exchange of views. 
• The court held that the CJI's recommendation could be refused by the executive for "cogent reasons", giving the executive primacy over the judiciary in judicial appointments. 

Second Judges Case (1993): 

• The Supreme Court reversed its earlier ruling from the First Judges Case. 
• It ruled that the "consultation" of the CJI now means "concurrence". The CJI's advice is binding on the President in appointing judges to the Supreme Court. 
• The CJI would consult two of his senior-most colleagues to form a "collegium" whose recommendation is binding on the government. 
• The collegium can veto the government's choice if the names are sent back for reconsideration. 
• The basic idea was to give the judiciary primacy over the government in judicial appointments to maintain the independence of the judiciary. 

Third Judges Case (1998): 

• The Supreme Court expanded the collegium to a five-member body, comprising the CJI and four of his senior-most colleagues. 
• For High Court appointments, the High Court collegium led by the Chief Justice and four other senior-most judges would recommend names, which then require approval from the CJI and the Supreme Court collegium before reaching the government. 

Why did the Supreme Court Strike Down the 99th Amendment and NJAC Act, and What are the Arguments for and Against NJAC? 

• In 2014, the Indian Parliament passed two new laws: 
  • The Constitution (99th Amendment) Act, 2014 
  • The National Judicial Appointments Commission (NJAC) Act, 2014 
• The 99th Amendment Act introduced three new articles (124A, 124B, and 124C) into the Constitution. 
• The NJAC Act established a new commission responsible for appointing and transferring judges to the higher judiciary (Supreme Court and High Courts). 
•  The NJAC was to be composed of: 
  • The Chief Justice of India 
  • Two senior-most Supreme Court judges 
  • The Union Law Minister 
  • Two eminent persons from civil society 
• In 2015, the Supreme Court ruled that both the 99th Amendment Act and the NJAC Act were unconstitutional. 
• The Supreme Court held that the NJAC undermined the independence of the judiciary, as it allowed the executive branch (government) to have a say in judicial appointments. 
• The court argued that the primacy of the judiciary, particularly the Chief Justice of India, in appointing judges was a fundamental part of the Constitution's basic structure, which Parliament had violated through the NJAC. 
• The Supreme Court determined that the NJAC may jeopardize the impartiality and objectivity of the appointment process, thus endangering the independence of the judiciary. 
• However, a number of legal professionals, including former judges, have argued that the NJAC is a better system for appointing judges. 

How Do Judicial Appointment Processes Differ in the Other Counties? 

• United Kingdom:  
  • The Constitutional Reform Act of 2005 established two Commissions to oversee the selection of judges.  
  • The Judicial Appointments Commission for England and Wales has 15 members, including a lay chair, six judicial members, two professional members (barristers or solicitors), five lay members, and one non-legally qualified judicial member. 
• South Africa:  
  • The Judicial Service Commission (JSC) advises the President on judicial appointments.  
  • The JSC comprises the Chief Justice, President of the Supreme Court of Appeal, a Judge President, the Justice Minister, advocates, attorneys, a law professor, members of the National Assembly, presidential appointees, and delegates from the National Council of Provinces. 
• France:  
  • The President of the Republic has a constitutional duty to safeguard judicial independence but does not directly select judges. 
  • Judges are chosen through a process involving the High Council of the Judiciary, or for lower courts, by the Minister of Justice in consultation with the High Council. 

How Can the Judicial Appointment Process in India Be Reformed to Balance Transparency, Efficiency, and Independence? 

• The NJAC was proposed to make the process of appointing judges more democratic and transparent.  
• Unlike the current collegium system, where only the Chief Justice and senior Supreme Court judges decide on appointments behind closed doors, the NJAC would have included a broader range of stakeholders, potentially speeding up judicial nominations. 
• However, NJAC faced criticism for possibly introducing politics into the appointment process and threatening judicial independence.  
• The collegium system, in contrast, has been criticized for being opaque and unclear, which can lead to favoritism and prevent qualified candidates from being appointed. 
• To address these issues, a balanced approach is needed. Any new system should aim to improve transparency and efficiency while protecting judicial independence.  
• It’s important to design a system that restores public trust in the judiciary and reduces delays in justice.  
• A collaborative effort involving different viewpoints may be necessary to find an effective solution. 

Conclusion

The judicial appointment process in India faces a balance between transparency, efficiency, and judicial independence. The Collegium system has been criticized for being opaque, while the NJAC was seen as potentially introducing politics into the process. A reformed system that addresses these concerns, while protecting the independence of the judiciary, is needed to restore public trust and ensure timely justice. This may require a collaborative effort involving different stakeholders to find an effective solution.