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Supreme Court Collegium Deadlock explained – CJI Bobde may retire without any appointment to SC

Supreme Court Collegium Deadlock explained – CJI Bobde may retire without any appointment to SC

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  • GS 2 II Polity II Judiciary II Supreme Court

Why in the news?

With just over a month left in his 14-month tenure as Chief Justice of India, the Justice S A Bobde-led collegium is yet to make its first recommendation of a judge to be appointed to the Supreme Court since he took office in November 2019.

Present Context:

The stalemate in the collegium comes even as the process of appointment of at least six SC judges is due. The apex court is short of four judges while two retirements — of CJI Bobde and Justice Indu Malhotra — are due in the next two months. Additionally, Justices Ashok Bhushan, Rohinton Nariman and Navin Sinha will retire this year.

All about Collegium system:

Origin of Collegium system:

  • In the case Supreme Court Advocates-On-Record Association V. Union of India, popularly known as THREE JUDGES CASE the concept of collegium system was evolved.
  • The word Collegium is nowhere mentioned in the Constitution, it has come in force as per Judicial Pronouncement. The origin of the concept for establishment of the system may be traced by the recommendations of the Bar Council of India made on 17 October 1981, during a national seminar of the lawyers at Ahmedabad. It was recommended that there should be a collegium system for the appointment of the Supreme Court Judges by the following authorities:
    • The Chief Justice of India
    • Five senior Judges of the Supreme Court
    • Two representatives who would be representing the Bar Council of India and the Supreme Court Bar Association.
    • The recommendation of such a Collegium system should be binding on the President though he can say for reconsideration on certain grounds.

Establishment of Collegium System with Judicial Pronouncement:

  • The Collegium of judges, as proposed by Bhagwati J, could only be established in India through the passing of an amendment to the provisions of Articles 124(2) and 217(1) of the Constitution.
  • But in 1993, a majority of Nine-Judge Constitutional Bench of the Supreme Court in the Second Judges’ Case and in 1998, the unanimous opinion of the nine- Judge Constitutional Bench of the Supreme Court in the Third Judges’ Case did accomplish the task of setting up of the collegium of judges.
  • The composition of the collegiums as contemplated by Bhagwati J in the First Judges’ Case that it ‘should be more broad- based and there should be consultation with wider interests’ was completely ignored; the membership of the Collegium was kept narrow-based (i.e. confined only to the judges of the superior courts).

How Collegium System Works?

  • The Collegium sends the recommendations of the names of lawyers or judges to the Central Government. Similarly, the Central Government also sends some of its proposed names to the Collegium. The Central Government does the fact checking and investigate the names and resends the file to the Collegium.
  • Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval. If the Collegium resends the same name again then the government has to give its assent to the names. But time limit is not fixed to reply. This is the reason that appointment of judges takes a long time.
  • The example of Chief Justice of the Uttrakhand High Court. In this case the Collegium is recommending the name of the Chief Justice K.M. Joseph for the judge of the Supreme Court but the central government is not giving its assent due to political reasons.
  • It is worth to mention here that there are 395 posts of the judges are vacant in the High Courts and 4 posts in the Supreme Court. There are 146 names are pending for approval between the Supreme Court and Central Government since last two years. Out of these 146 names 36 names are pending with the Supreme Court Collegium, while 110 names are yet to be approved by the Central Government.

Advantages and Disadvantages of Collegium System:

  • Advantages:
    • Proper and effective functioning: The collegium system increases secrecy. This system is one of the best kept secret in the country. It kept secret within the four walls of the body for proper and effective functioning of the institution that makes the system opaquer.
    • Influence of executive and legislative: The collegium system makes Judiciary independent from the politics. It separates the judiciary from the influence of executive and legislative. With the Govt.’s influence judiciary can work without any fear and any sort of favour. This ensures the regulation of the doctrine of separation of power.
    • Ensures the independence of judges: There are many cases in which the judges of the Supreme Court were transferred because of the political influences. So the power given to executive organ for transferring the judges would lead to decrease the independence of judiciary as well as it will stop the judiciary organ to work effectively. For fair functioning collegium system would be best as it ensures the independence and allows the judge to perform their duty without any fear or without any interference and influence.
    • The executive organ is not specialist or does not have the knowledge regarding the requirements of the Judge as comparative to the CJI. Collegium system ensures that the deserving one is sitting in the position of the Judge in Supreme Court.
  • Disadvantages:
    • Nepotism and favoritism: This system does not provide any guidelines in selecting the candidates for the judge position of the Supreme Court because of which it leads to wide scope for the nepotism and favoritism. Because of which the deserving candidates are unable to appointed as the Judge.
    • Not accountable to any administrative body: The collegium system does not have any criteria for testing the candidate as well as they don’t investigate any background of the candidates and they are not accountable to any administrative body that may lead to wrong choice of the candidate while overlooking the right candidate.
    • Pending cases: Already there are many cases pending in the Court, they are having limited time the power given to them for the appointment would lead to burden to Judiciary.
    • The principle of check and balance is violated in this system. In India, three organs work partially independently but they keep check and balance and control on the excessive powers of any organ. As Judiciary is dependent on the executive for the appointment of the Judges with the consultation of CJI and the senior most Judges of SC; but this system gives the immense power to Judiciary to appoint Judges, so the check on the excessive powers would not be ensured and misuse of powers can be done.
    • Non-transparency: This system leads to non-transparency of the judicial system, which is very harmful for the regulation of law and order in the country.

Some example from International country:

  • In Uk: The SC Judges are appointed by a five peoples’ selection commission. That committee consists of SC President, his deputy and one member each appointed by the JACs which consist of lay person, members of judiciary and the bar; of England, Scotland and Northern Ireland.
  • In Germany: The appointment of the Judges is made through the process of the election. Half the members of the Federal Constitutional Court are elected by the executive and half by the legislative.

Conclusion:

All mechanisms for judicial appointment may have some advantages and disadvantages and therefore, no particular system can be treated as the best system. Despite this, in order to maintain public confidence in the appointment system and to ensure judicial independence the commission system is perhaps a very effective mechanism for judicial appointment. However, to ensure the effectiveness of this mechanism the commission should be representative in nature comprising members of the executive, legislature, judiciary, legal profession and lay persons.

Mains oriented question:

What is the Collegium System and how it works? What are its pros and cons? (200 words)