Malady and remedy – appointments to the higher judiciary | 19th November 2022 | UPSC Daily Editorial Analysis

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What's the article about?

  • It talks about the disagreement between the Judiciary and the Executive over the appointments to the higher judiciary.


  • GS2: Structure, Organization and Functioning of the Executive and the Judiciary;
  • Prelims

What's the crux of the article?

  • In India, appointments to the higher judiciary are made through the collegium system.
  • In this system of appointments, the executive has less say. Thus they tried to replace it with the ‘National Judicial Appointments Commission (NJAC). But the SC declared it invalid and continued the collegium system.
  • Now two new developments happened:
    1. A lawyer has now formally approached the SC for reconsideration of its 2015 judgement striking down the NJAC.
    2. A Bench of the Court voiced its displeasure over the Government delaying its recommendations for appointment, as well as ignoring names that had been reiterated twice or even thrice. The Bench was forced to observe that keeping the recommendations on hold was “some sort of a device to compel these persons to withdraw their names”.

What is the collegium system?

  • It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
  • The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
    A HC collegium is led by its Chief Justice and four other senior most judges of that court.
  • It has it genesis in the three judges cases:
  • Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
  • The word “consultation” is defined in these three judges' cases.
    • First Judges Case (1981): It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
    • Second Judges Case (1993): SC introduced the Collegium system, holding that “consultation” really meant “concurrence”. It went on to say that it was not the CJI's personal opinion, but an institutional opinion formed in consultation with the two senior-most judges on the Supreme Court.
    • Third Judges Case (1998): SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Criticism of the Collegium System:

  • It is opaque
  • It limit the zone of consideration to those known to its members and judges
  • It is not conducive to attracting the best legal talent

What is NJAC?

  • NJAC was a body proposed for the appointment and transfer of judges to the higher judiciary in India.
  • It sought to replace the collegium system.
  • In 2015, in a 4-1 majority verdict, the SC held that both the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, were unconstitutional as it would undermine the independence of the judiciary.

Way Forward:

  • A better system for appointing members to the higher judiciary should be developed in collaboration between the executive and judiciary since the judiciary plays a vital role in democracy.

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