The Collegium and changes — it may still be early days
Source: The Hindu
For Prelims
What: The editorial delves into recent developments within the Supreme Court of India’s Collegium system, particularly focusing on two key resolutions. First, the Collegium will now conduct interviews with candidates recommended for elevation as judges to the High Courts. Second, it aims to exclude candidates whose close relatives have previously served or continue to serve as judges. While these changes may seem minor, they carry potential significance in addressing longstanding concerns related to judicial appointments, including transparency and diversity in the judiciary.
Why: The Collegium system, established to ensure judicial independence, has long been criticized for its lack of transparency and accountability. The editorial emphasizes that while these resolutions could signal progress, they are not enough to resolve the deeper issues within the judicial appointment process. A major concern remains the opacity of the system, and the challenge is how the government may use its powers to block or delay judicial appointments.
Who: The editorial covers the following:
- Supreme Court of India: The judicial body responsible for implementing the new resolutions aimed at improving the Collegium system.
- Government: Its role in the judicial appointment process and its ability to block recommendations made by the Collegium.
- Collegium: The body of senior judges tasked with recommending judicial appointments.
- Constitution Framers: Their intention to balance judicial independence with accountability in the appointment process.
For Mains
GS II: Polity – Governance, Constitution, and Judicial System
Highlights of the Article
Recent Reforms in the Collegium
Collegium’s Systematic Limitations
Historical Context and Constitutional Intent
Challenges to Judicial Independence
Context:
The editorial underscores the ongoing challenges in the judicial appointment process, which has evolved since the creation of the Collegium system in the 1990s. Despite some reforms, the system remains marred by concerns of opacity and executive overreach. This issue is central to maintaining the judiciary's independence and upholding the rule of law in India
UPSC EXAM NOTES ANALYSIS
1. Concerns over Judge Merit System
- Recently, two noteworthy developments regarding the functioning of the Supreme Court of India’s Collegium have come to light. As is common with such matters, media reports attribute this information to unnamed sources.
- According to these reports, the Collegium has decided to conduct interviews with candidates proposed for promotion to the High Courts. Additionally, it will aim to exclude individuals whose close relatives have previously served or are currently serving as judges of the High Courts or the Supreme Court.
- Individually, these resolutions may not seem particularly significant. It is expected that the selection of individuals for critical judicial roles would involve careful evaluation, which could include interactions between decision-makers and the candidates.
- It also seems reasonable that some degree of filtering is an inherent part of any selection process. The Collegium recognizes that while some deserving candidates may be excluded in efforts to avoid nepotism, this approach is believed to foster a more diverse judiciary.
- However, it is premature to assess the effectiveness of these decisions. Over time, they might be regarded as initial steps toward reform, but for now, a persistent concern remains — any reform to the Collegium system will be limited if the government continues to block proposals on arbitrary and undisclosed grounds.
- Fundamentally, the Collegium operates as a product of judicial legislation. Consequently, it often finds itself at an impasse. Lacking formal, binding rules, it remains unaccountable, with its methods and decision-making process shrouded in opacity and inconsistency.
- For the system to maintain its integrity, it is crucial to replace this informal approach with a set of clear, binding rules. Although there is mention of a "memorandum of procedure," it is unclear whether violations of this document lead to consequences.
- In recent weeks, as we commemorated the 75th anniversary of the Constitution's adoption, there has been significant praise for its principles. The continued relevance of the Constitution has reinforced our commitment to equality and social justice. However, the persistent inability to determine a clear process for judicial appointments remains a glaring issue.
- The framers of the Constitution spent considerable time debating this very matter. They were keenly aware of the fundamental principles underpinning the republic: that the legislature, executive, and judiciary must remain independent. Achieving a balance that ensured judicial independence while maintaining the sovereignty of the appointment process was always going to be a complex challenge
2. The Middle Course
- During the Constituent Assembly debates, numerous suggestions were put forward, but as Dr. B.R. Ambedkar, the Assembly's chairperson, explained, the framers opted for a "middle course."
- As a result, the Constitution stipulates that judges to the Supreme Court are appointed by the President of India, in consultation with the Chief Justice of India (CJI) and other judges they deem appropriate. Similarly, judges to the High Courts are appointed by the President, in consultation with the CJI, the state’s Governor, and the Chief Justice of the relevant High Court. In cases of transfers, the President may move a judge between High Courts only after consulting the CJI.
- These provisions are straightforward, but the lack of clarity about the nature of the required consultation and the level of transparency needed allowed for judicial interpretation.
- In the 1993 Second Judges Case, the Supreme Court clarified that "consultation" must imply "concurrence" from the CJI, as well as from a “collegium” of judges. This ruling established a new procedure intended to align with the Constitution's intent while ensuring the judiciary’s independence and autonomy.
- This process involves several steps. Broadly speaking, the collegium — composed of the CJI and senior judges, sometimes two or four members — recommends judicial appointments and transfers, as well as the appointment of a new Chief Justice to a High Court.
- The collegium makes these recommendations after consulting other judges. Once made, the Union government can either approve the recommendation or return it for reconsideration. If the proposal is re-submitted, the government must accept it.
- While this process seems clear, the absence of binding, formal rules enables the government to delay or block recommendations it finds inconvenient. It can withhold a proposal indefinitely or, upon re-submission, refuse to issue the presidential warrant needed for the appointment or transfer.
- This creates a paradox: while the collegium is theoretically supreme in judicial appointments, the government's ability to block recommendations undermines this supremacy.
- Despite the Court's 2015 ruling in the Fourth Judges Case, which affirmed that judicial primacy must be maintained, the government's ability to obstruct the process complicates the matter, raising questions about the true balance of power
3. Rule of Law
- Regardless of our stance on the constitutional validity of the collegium, the system currently upholds the rule of law. The government is legally required to adhere to the procedures outlined in the Judges’ cases, with no room for discretion. When it delays or ignores recommendations, it effectively obstructs the legal process.
- There is no doubt that finding a process that balances accountability with independence is crucial. Until such a system is established, adopting meaningful reforms within the existing framework remains essential. The law, as it stands, must be respected. The recent proposals from the collegium address some long-standing concerns about its processes, but the focus must eventually shift to the implementation of these proposals.
- While the Court has occasionally questioned the government for failing to act on resolutions, it has refrained from issuing direct orders for compliance. This may be due to concerns that such actions could be perceived as unnecessarily confrontational. Ultimately, it is important for the different branches of the state to collaborate effectively to ensure the process is carried out as intended
4. Conclusion
The collegium system, while embodying the rule of law, remains a complex and evolving framework that requires both reform and proper implementation. The ongoing challenges in its operation—ranging from government delays in acting on judicial recommendations to the absence of clear, binding rules—underscore the need for a more transparent and accountable process. While recent steps taken by the collegium may address some of the criticisms, the fundamental issue of effective execution remains. It is essential that the judiciary, the government, and other stakeholders work collaboratively to ensure that judicial appointments are made in accordance with constitutional principles, upholding the independence of the judiciary while fostering accountability. Only then can the collegium system achieve its intended goals, maintaining public trust and ensuring the integrity of the justice system
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Mains Practice Questions
1.The collegium system in India has long been a subject of debate. Critically analyze its functioning and suggest measures for ensuring greater transparency and accountability in the judicial appointment process
2.The Collegium system for judicial appointments, though developed in response to constitutional ambiguities, has become controversial over the years. Examine the challenges it faces and the role of the government in judicial appointments
3.The collegium system is based on judicial interpretations rather than explicit constitutional provisions. In light of recent reforms, discuss the advantages and limitations of the current system of judicial appointments in India
4.What is the significance of judicial independence in the context of judicial appointments in India? Critically examine the impact of the collegium system on the independence of the judiciary
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