APPOINTMENT OF JUDGES

• The Supreme Court collegium has made recommendations to five new Chief Justices of high courts.
• It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court (SC) and not by an Act of Parliament or by a provision of the Constitution.
• It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
• The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
• SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
• It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
• SC on the President’s reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Collegium System

• The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior most judges of the court.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.

Procedures for Judicial Appointments

• The President of India appoints the CJI and the other SC judges.
• As far as the CJI is concerned, the outgoing CJI recommends his successor.
• In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
• For other judges of the SC, the proposal is initiated by the CJI.
• The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
• The consultees must record their opinions in writing and it should form part of the file.
• The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

Way Forward

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalise the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity.

SOURCE: THE HINDU,THE ECONOMIC TIMES,MINT