Context: Retired Supreme Court judge Justice Sanjay Kaul stated that former CJI D.Y. Chandrachud may have discussed proposed judicial appointments with the Union Government even before the collegium formally considered them. He described this as seeking the government's 'pre-approval', raising concerns about judicial independence and executive influence.
- Core issue: The controversy has revived the debate over transparency, accountability and the evolution of India's collegium system of judicial appointments.
Constitutional Provisions Governing Judicial Appointments
- Article 124: Supreme Court judges are appointed by the President after consultation with the Chief Justice of India (CJI) and other authorities as constitutionally required.
- Article 217: High Court judges are appointed by the President after consultation with the CJI, Governor of the State and Chief Justice of the concerned High Court.
- Original constitutional arrangement: The Constitution envisaged executive appointment after consultation with the judiciary to balance judicial independence with the assessment of candidates' professional competence and suitability.
Evolution of the Collegium System
- First Judges Case (1981): The Supreme Court upheld the primacy of the executive in judicial appointments, considering its democratic accountability.
- Second Judges Case (1993): The Supreme Court reversed the earlier position and established the collegium system, giving primacy to the judiciary to protect judicial independence and prevent political interference.
- Third Judges Case (1998): The Supreme Court reaffirmed the collegium system and clarified its composition and consultation requirements.
- Present composition:
- Supreme Court appointments: CJI + four senior-most Supreme Court judges.
- High Court appointments: CJI + two senior-most Supreme Court judges.
Appointment Procedure and Memorandum of Procedure (MoP)
- Memorandum of Procedure (MoP): Prepared by the Union Law Ministry in 1998, it lays down the detailed procedure for judicial appointments based on the Supreme Court's Second and Third Judges Case decisions.
- Initiation of appointments: The collegium initiates recommendations for appointments to the higher judiciary and forwards them to the Central Government.
- Government's role: The Centre can return recommendations for reconsideration if it has objections or reservations regarding a candidate.
- Reiteration of recommendations: If the collegium reiterates its recommendation, the government is expected to make the appointment.
- Pending reform: Following the NJAC judgment, the government and judiciary agreed to revise the MoP to improve transparency. However, differences over the proposed provisions have prevented its finalisation for over 11 years.
National Judicial Appointments Commission (NJAC)
- Constitutional Amendment: The 99th Constitutional Amendment Act, 2014 provided for the establishment of the NJAC to replace the collegium system.
- Composition: Six members comprising the CJI, two senior-most Supreme Court judges, Union Law Minister and two eminent persons.
- Objective: To introduce a broader and more participatory mechanism involving the executive and other stakeholders in judicial appointments.
- Supreme Court judgment (2015): The Supreme Court struck down the 99th Constitutional Amendment and NJAC Act, holding that they violated the basic structure of the Constitution, particularly the independence of the judiciary.
- Present position: The collegium system continues to govern appointments to the higher judiciary.
International Practices in Judicial Appointments
- India: Uses a judiciary-driven collegium system, evolved through Supreme Court judgments, without a direct equivalent in other major democracies.
- United States: President nominates judges to the Federal Supreme Court. The Senate confirms the nominations, creating a system of executive nomination and legislative oversight.
- United Kingdom: Judicial Appointments Commission (JAC): An independent 15-member body comprising representatives from the judiciary, legal profession and public. Selects candidates for judicial positions in courts and tribunals. UK Supreme Court appointments: Made through a selection commission comprising the UKSC President, a senior UK judge and three other members, including a JAC member.
- South Africa: Judicial Service Commission (JSC): A 23-member body comprising representatives from the judiciary, legislature, executive, legal profession and academia. Recommends candidates to the President for judicial appointments.
Challenges Associated with the Collegium System
- Lack of transparency: The criteria and reasoning behind the selection and rejection of candidates are not sufficiently clear or publicly accessible.
- Limited accountability: The judiciary exercises substantial control over appointments without an equivalent institutional mechanism for external scrutiny.
- Allegations of nepotism: Concerns have been raised regarding favouritism towards relatives and associates of sitting judges in judicial appointments.
- Limited stakeholder participation: The system does not adequately involve the legislature, executive, legal profession and academia in the selection process.
- Executive-judiciary friction: Differences between the government and collegium over recommendations and the appointment procedure have created institutional tensions.
- Unresolved procedural framework: The revised MoP remains unfinalised, leaving important aspects of the appointment process unsettled.
Way Forward
- Finalise the revised MoP: Establish transparent selection criteria, clear timelines, objective assessment procedures and a structured consultative mechanism.
- Improve transparency: Provide greater clarity regarding the criteria for selection, evaluation of candidates and reasons for recommendations, subject to legitimate confidentiality requirements.
- Broaden consultation: Involve representatives from the Bar Council, academia and other relevant stakeholders to make the process more inclusive.
- Consider NJAC reform: A restructured NJAC with broader representation could be considered as a long-term reform, while ensuring adequate safeguards for judicial independence.
- Judicial veto: The judiciary could retain a veto over final recommendations to prevent executive domination and preserve institutional independence.
Conclusion: Judicial appointments require a balance between judicial independence, institutional accountability and transparency. Reforms should improve the credibility and inclusiveness of the appointment process without compromising the constitutional principle of independence of the judiciary.
