Breaking the logjam, handing over the baton (The Hindu, GS-2, Polity)

Context:- The Supreme Court Collegium led by the Chief Justice of India (CJI) first time ever recommended/selected as many as nine persons at one go to be appointed to the apex court. The Collegium selected all the nine vacancies in the Supreme Court which will be filled up after president assent.

Most awaited why?

  • Every CJI has taken up the filling up of vacancies as a matter of utmost  priority but not succeed. 
  • Even the then CJI T.S. Thakur in 2016 broke down, at a function attended by the Prime Minister in a rare anguish because of his inability or helplessness in filling the vacancies which was seriously affecting the functioning of the supreme judicial forum of the country. 

How collegium system came into existence:-

  • This system appoints and transfers judges of supreme court and high court.
  • This system is neither enacted by an Act of Parliament nor by a provision of the Constitution rather through a supreme court fantasy.

How the collegium System evolved:-

  • First Judges Case (1981):

    • It declared that the consent of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers is not equal to concurrence.
  • It gave the executive a free hand over the Judiciary in judicial appointments for the next 12 years.

But soon Second Judges Case (1993):

  • Here the supreme court said that“consultation” really meant “concurrence”.
  • It also said that an institutional opinion was formed in consultation with the two senior-most judges in the SC or plurality of judges not the individual opinion of CJI.

Third Judges Case (1998):

  • Here the supreme court expanded the Collegium to a five-member body.
  • CJI along with four of his senior-most colleagues.
  • The supreme court collegium headed by the CJI.

Why collegium system is an issue:-

  • This system is neither enacted by an Act of Parliament nor by a provision of the Constitution rather through a supreme court fantasy.
  • This is an opaque system where judges appoint judges and covertly names are recommended.
  • There is a deadlock between the executive and judiciary over the name of the people.
  • It is itself a difficult task on which all judges should agree.

What are the positives of this collegium meet:-

  • This meeting of collegium is the first ever formal meeting of the Collegium.
  • The latest resolution of the Collegium system will give unparalleled effects to the multiple judicial pronouncements of the top court.
  • For the appointment as the judge of supreme court the fundamental consideration should be her/his ability to do complete justice enshrined in article 142 of our constitution.

What are the India’s compelling realities:-

  • Unity in diversity.
  • Diversity across the region as well as people.
  • Intra region or inter region.
  • Recently the supreme court has also admitted the diversity when CJI said There can be no denial that there is public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial office and making judicial appointments. That means from the darkness towards light or we can say that towards the transparency.
  • Currently in 9 judge recommendations, we have 3 names of women along with the backward class, schedule cast.

Way forward:-

  • Memorandum of procedure.
  • Judicial Restraint.

Extra tit-Bits:- What is National Judicial appointment commission:-

  • The central government will make a reference to the NJAC whenever vacancy arises in the SC or HCs.
  • Existing vacancies will be notified to the NJAC within thirty days.
  • When a vacancy arises due to the completion of term, a reference will be made to the NJAC six months in advance.

Power of the President to require reconsideration:-

  • The President may require the NJAC to reconsider the recommendations made by it.
  • If the NJAC makes a unanimous recommendation after such reconsideration, the President shall make the appointment accordingly.
  • Download Plutus IAS Daily Current Affairs of 23th August 2021