At present, the Judicial Appointments and transfers (Supreme Court and the High Courts) are undertaken through the ‘Collegium System’.
The Collegium of the Supreme Court is a body of 5-Judge body, headed by the Chief Justice of India. It includes 4 senior-most Judges of the Supreme Court. The Collegium recommends the name of Judges to be appointed to the Court.
Concerns associated with the Collegium System
The Collegium is not prescribed in the Constitution.
Transparency
Accountability
Criticism by Judges
No Checks
National Judicial Appointments Commission (NJAC)
The Parliament had passed the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Act, 2014 that proposed to create a National Judicial Appointments Commission (NJAC).
The NJAC was supposed to be an independent Commission to replace the Collegium System to appoint Judges to the higher Judiciary.
In 2015, the Supreme Court had declared the Amendment Act and the NJAC Act as unconstitutional.
Issues associated with the National Judicial Appointments Commission (NJAC)
The two eminent persons to be part of the NJAC need not have any expertise in Law.
Certain terms were left unexplained and ambiguous in the Acts.
Power by any two members could have resulted in overriding of the Judicial opinion.
CJI had no Casting Vote.
The Chief Justice and two senior-most judges of every High Court had to nominate persons to the NJAC for appointment as High Court Judges. Simultaneously, the NJAC could also nominate persons for appointment as High Court Judges. This could have resulted in conflict if the two set of nominees were different.
Suggestions
Revive NJAC
Ensure Smooth Functioning: Till a new system is established, the Government should adhere to the recommendations of the Collegium and make the appointments in a prompt manner. Delay in appointments and needless friction should be avoided.
The Government and Judiciary should cooperate to finalize the Memorandum of Procedure (MoP) regarding judicial appointments.
Bring Transparency: The Judiciary should bring more transparency in the process of appointments. Collegium must disclose the reasons for selection and rejection of a candidate.
All India Judicial Services (AIJS): Several experts have argued for establishment of All India Judicial Services (AIJS) to improve the quality of judges in the lower Judiciary. This should be consulted and implemented post consensus among all stakeholders.
