Appointment of Judges in Supreme Court and High Court

This article discusses the appointment of Judges in Supreme court and high court. This article is written by Vaidehi, a law student from Symbiosis Law School, Pune. 
Appointment of Judges in Supreme Court and High Court
Appointment of Judges in Supreme Court and High Court


    Abstract

    Legislature, Government and Judiciary square measure the 3 pillars on that democratic structure of Bharat rests and also the powers and functions of those organs clearly set down within the constitution. However, the difference persists, particularly within the appointment of judges between the chief and judiciary. Once the passing of Constitution, there was a powerful Government say within the appointment of judges. Later on, judiciary understood the Constitutional provisions and developed the collegiums system, that minimizes the chief say within the appointment of judges to the upper judiciary. With the elimination of the chief role, the position of the judiciary strong. this article discusses the Constitutional Provision, the role of Government and judicial interpretation within the method of appointment of judges.


    The tussle between the Judiciary vis a vis the Parliament and also the Government has return a protracted means since the inner emergency amount of the history of our country that reached is fruits in 2015 and 2016. In 2015 99th constitutional change concerning National Judicial Appointment Commission (NJAC) was declared unconstitutional. In 2016 note of Procedure (MoP) remained disputable. The trust deficit between these organs of the Government has yet again place into a trickster relief. Forty odd years have irreligious since the imposition of committed judges’ policy in CJI Associate in Nursing Ray Case (1973), the ghosts of deep suspicion between Judiciary and also the different 2 organs echo even these days. The appointment of judges is one such {grey square measures |gray area |area} wherever the chief and also the judiciary are hostile. it’s necessary to map the changes within the policy of judicial appointments that balances on the precarious scale of judicial responsibility on one facet and judicial independence on the opposite. The analysis paper is split into seven heads. 1st head introduces the difficulties and variations of policy concerning judicial appointments. Second head explores the initial intention of the constitutional framers. it’s followed by third head i.e. “The Judicial Attitude” wherever the inconsistent application of the initial policy of judicial independence has been critically evaluated. however, the anxious political parties interfered within the property of judicial policy of appointment of judges has been mentioned within the fourth head “National Judicial Appointment Commission: Evolution.” The apparent shortcomings of NJAC square measure examined within the fifth head below “The Drawbacks of National Judicial Appointment Commission.” Sixth head deals with the NJAC judgement and dispute concerning Judicial Independence versus Democratic Legislation. Seventh half entitled “Conclusion and suggestions” covers suggestions to enhance collegium as mentioned within the Supreme Court.


    The Constitution of Bharat, so as to make sure Independence of Judiciary, provides for the appointment and transfer of Judges of the upper judiciary by the President in ‘Consultation’ with the jurist of Bharat and also the different Judges. an issue arose with respect to the word ‘Consultation’ because the Supreme Court equated this word with ‘Concurrence’ whereas evolving the ‘Judges’ Collegium’ system, shifting the facility from the chief to
    the Judiciary. However, in 2014, Parliament threw away the two-decade previous Collegium System and established the National Judicial Appointments Commission. This paper critically examined the 2 mechanisms, namely, the Judges’ Collegium and also the fresh introduced National Commission for Judicial Appointments, at the side of the relevant judicial pronouncements. The paper concludes that, neither the National Judicial Appointments Commission nor the Judicial Collegium proves sound on the principles of Independence of Judiciary and Rule of Law. It suggests incorporation of ‘Judicial Council’ comprising seating judges in rotation, retired judges, far-famed academicians and jurists within the legal field, having no reference to political parties or political activities, to be appointed by the President of Bharat, to nominate, choose and appoint judges.


    Judicial independence play a crucial role in maintaining the democratic set-up of any country. The Judiciary acts as a defender of rights of the voters warranted by the law of the land and also the constitution. Every democratic country adopts numerous suggests that to make sure freedom of the judiciary and thereby to make sure individual freedom. Associate in Nursing impartial and freelance judicatory alone will defend the rights of the voters against the discretionary powers of the chief or general assembly. The judiciary is comprised of the overall judicatory within the country, viz. courts, judges and justices. Judicial independence is very important whether or not the choose is coping with a civil or a criminal case. So, the mechanisms for judicial appointment plays a crucial role in choosing the persons having the skilled skills Associate in Nursing qualities that square measure needed for judges in a freelance judiciary. a crucial demand of sustaining public confidence within the judiciary is that the openness and transparency in appointing judges. Openness and transparency in creating appointments basically rely upon the mechanisms for appointment of judges. This paper seeks to look at the character of Indian collegiums system for judicial appointment. Its main purpose is to analyse however, the prevailing collegiums system for judicial appointment square measure effective in maintaining judicial independence and public confidence within the judiciary.

      Introduction


      All the three components of democratic system area unit necessary in their individual means. however, the judiciary is taken into account to be the foremost necessary. Justice should not solely be done – it should be seen to be done. it’s vitally necessary in an exceedingly democracy that individual judges and also the judiciary as a full area unit impartial and freelance of all external pressures and of every alternative in order that people who seem before them and also the wider public will have faith in that their cases are set fairly and in accordance with the law. Judicial independence will, however, mean that judges should be liberal to exercise their judicial powers while not interference from litigants, the State, the media or powerful people or entities, like giant firms. usually this can be} a vital principle as a result of judges often decide matters between the subject and also the state and between voters and powerful entities. The constitution of Asian nation adopts various devices to confirm the independence of the judiciary keep with each the doctrines of constitutional and Parliamentary sovereignty. In India the judiciary has the ability to issue writs within the name of habeas corpus, prohibition, mandamus, quadrant and judicial writ. the method of appointment of judges conjointly ensures the independence of judiciary in Asian nation. The Supreme Court of Asian nation was inaugurated on Jan twenty eight, 1950. It succeeded the court of that was established below the Government of India Act, 1935.The system through that the judges of the Supreme Court/High Courts area unit appointed and transferred is named “Collegium System”. The Collegium system is one wherever the magistrate of Asian nation and a forum of 4 senior-most judges of the Supreme Court appointments and transfers of judges .Collegium system could be a method through that selections associated with appointments and transfer of judges in supreme court and supreme court, and not by an Act of Parliament or by a provision of the Constitution.


      And impartial judiciary is circular function qua non if, democracy supported rule of law and elementary freedoms is to sustain. For a federal democracy it’s another significance. Though, the principle and policy of judicial independence rests on numerous pillars, appointment of judges is that the central pillar of the building. Persons in power have practiced 2 policies of judicial appointments i.e., committed judge’s policy and freelance judges’ policy. World Health Organiz
      ation those that people who} advocate the committed judiciary policy base their argument on the moot purpose that it envisages judiciary and also the judges committed towards the laws and public policy created by the democratic representatives who best recognize the interests and demands of the folks. The policy highlighted the commitment of a decide towards the democratic establishments of law-makers and Government and not towards the particular people wielding the ability. The Judicial Procedures Reform Bill of 1937 planned by President Franklin D. Roosevelt was a legislative endeavour to feature additional justices to the U.S. Supreme Court in order that favourable rulings concerning New Deal legislation can been sued. The plight of the forgotten plenty may fall deaf on the ears of the judges in their ivory towers; however, this policy was supposed to compromise appointments in judiciary. On the opposite hand freelance judge’s policy holders don’t advocate any compromise in appointment in judiciary albeit elite judges might not appreciate the plight of forgotten men. The appointment of judges, therefore, has been a matter of nice deliberation since it involves an especially necessary question with regards to the structure of Indian State, i.e., whether or not Indian Judiciary is freelance or not. Time and once more this discussion have been brought into limelight and elaborate discussions have taken place. From importance of the manager to the fixing of the collegium so to the fixing of the National Judicial Appointment Commission, the question with regards to the independence of judiciary has come back an extended means, and astonishingly additionally as unfortunately continues to be unsolved. Throughout the democratic years of this country numerous queries are raised to see the standing of appointment and transfer of judges that has been mentioned below numerous heads. the first perform of the judges is to adjudicate. but the appointment of judges could be a strictly body perform. therefore, the judges concerned within the collegium had double responsibility on their back as they’d the requirement and also the duty of their workplace to listen to numerous matters and choose them with efficiency and to advocate future judges and transfer of judges. they need obligations below proceeding Jurisdiction, Original Jurisdiction, constative Jurisdiction etc. At a similar time, they’re chairwoman or members of varied committees like legal aid committee, PIL committee. 1A Thus, this was thought of to be over-burdening of the judges. Secondly, several unreasonable and absolute practices had crept within the appointment method. favouritism was one such development that stubborn the method of appointment of judges. National Judicial Appointment Commission is claimed to originate transparency within the method of appointments and transfer of judges. the event of a structure for the appointment of judges has been occurring since the creating of the Constitution itself.


      Hence it becomes pertinent to observe this process from its inception. After a very stormy journey, the Constitutional Amendment which was one of the leading promises made by the winning political party was passed on August 13, 2014. It sought to bring about major amendments in the Article 124, Article 217 and Article 222 of the Constitution of India. This amendment added Articles 124A, 124B and 124C after article 124. Hence the amendment is merely to facilitate the formation of a National Judicial Appointment Commission. By introducing these articles and laying down the composition of the Commission this amendment gave the National Judicial Appointment Commission a Constitutional character. National Judicial Appointment Commission therefore was a constitutional body. It becomes a necessary practice to understand the whole debate surrounding the National Judicial Appointment. Another reason is that it creates a dialogue between the two wings of our Government, the Executive and the Judiciary. Whether independence of judiciary should supersede the democratic legislative process? Whether independence of judiciary is a necessary facet of any democratic country? Whether the inclusion of Executive in the appointment procedure of the judges would necessarily undermine the independent structure of the judiciary? The binary of consultation versus concurrence and a bunch of other important questions which sadly even after the passing of the most recent judgment has been able to give justice to them properly. The matter of appointment of judges has been analysed in extreme depth by both the legislature as well as the judiciary. The debates of the constituent assembly on judicial appointment give a wonderful insight on the legislative intent of the creators of the Constitution. While constituent assembly was divided on what ought to be the correct procedure for appointment of judges, it was sure that the power and procedure to appoint judges cannot rest exclusively with one organ. However, when we try to unearth the judicial intent on the interpretation of the process of appointment, we find appointment of judges was one more area where judicial decisions have completely overlooked the intention of framers of the constitution. This makes it mandatory to inquire what prompted judiciary to avoid the ‘original intent theory’ and to plunge in confrontationist plank leading to ever-evolving judicial legislation in the area of appointment of judges.

        Appointment of judges in Indian judiciary


        • The aim of judicial appointment processes ought to be to supply a reliable suggests that of distinctive persons, UN agency possess these qualities, and to try to to thus in an exceedingly manner that’s legitimate, so as to sustain public confi
        dence within the judiciary.


        • The hierarchy of system in Bharat plays a crucial role in maintaining the independence of judiciary. Supreme Court is that the highest court for justice. Then, there square measure tribunal and District Courts in each state. Then, there square measure People’s courts referred to as Lok Adalat’s. Judges of the Supreme Court and High Courts square measure appointed by the President beneath Articles 124(2) and 217 of the Constitution. The President is needed to carry consultations with such of judges of the Supreme Court and of the High Courts as he could view necessary. Article 124(2) says: “Every choose of the Supreme Court shall be appointed by the President by warrant beneath his hand and seal when consultation with such of the Judges of the Supreme Court and of the High Courts within the States because the President could view necessary for the aim and shall hold workplace till he attains the age of 65 years. If within the case of appointment of a choose aside from the jurist, the jurist of Bharat shall continuously be consulted.” And Article 217 states: “Every choose of a tribunal shall be appointed by the President by warrant beneath his hand and seal when consultation with the jurist of Bharat, the Governor of the State, and, within the case of appointment of a choose aside from the jurist, the jurist of the tribunal.”


        Collegium System


        The Collegium sends the recommendations of the names of lawyers or judges to the Central Government. Similarly, the Central Government conjointly sends a number of its planned names to the Collegium. The Central Government will the actual fact checking and investigate the names and resends the file to the Collegium. Collegium considers the names or suggestions created by the Central Government and resends the file to the Government. for final approval. If the Collegium resends an equivalent name once more then the Government. needs to offer its assent to the names. however, point in time isn’t mounted to reply. this is often the rationale that appointment of judges takes an extended time. it’s value to say here that their square measure 395 posts of the judges’ square measure vacant within the High Courts and seven posts within the Supreme Court. There square measure 146 names square measure unfinished for approval between the Supreme Court and Central Government since last2 years. Out of those 146 names thirty-six names square measure unfinished with the Supreme Court Collegium, whereas one hundred ten names square measure nonetheless to be approved by the Central Government.



        As per the constitution, as control by the court within the 3 judges cases – (1982, 1993, 1998), a choose is appointed to the supreme court by the president on the advice of the collegium -a closed cluster of the jurist of Asian country, the four most senior chooses of the court and also the senior-most judge hailing from the state supreme court of a prospective appointee. Following square measure, the 3 cases:

        o S. P. Gupta v. Union of Asian country – 1981 (also called the Judges’ Transfer case)

        o Supreme Court Advocates-on Record Association vs Union of Asian country – 1993

        o In re Special Reference one of 1998.


        • Brief about the cases

        S. P. Gupta v. Union of India – 1981 [1]

        the Supreme Court by a majority judgment held that the concept of primacy of the Chief Justice of India was not really to be found in the Constitution. It held that the proposal for appointment to a High Court can emanate from any of the constitutional functionaries mentioned in Article 217 and not necessarily from the Chief Justice of the High Court. The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 was not “concurrence” meaning that although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them. The judgment tilted the balance of power in appointments of judges of High Courts in favor of the executive.


          Supreme Court Advocates-on Record Association V/s. Union of India – 1993[2]

            In Supreme Court Advocates-on-Record Association Vs Union of India, 1993, a nine judge Constitution Bench overruled the decision in S P Gupta case and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary. Underlining that the top court must act in “protecting the integrity and guarding the independence of the judiciary”, the majority verdict accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments. “The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. The collegium system, the court said that the recommendation should be made by the CJI in consultation with his two senior most colleagues, and that such recommendation should normally be given effect to by the executive. It added that although it was open to the executive to ask the collegium to reconsider the matter if it had an objection to the name recommended, if, on reconsideration, the collegium reiterated the recommendation, the executive was bound to make the appointment.


              In re Special Reference 1 of 1998[3]

                : In 1998, President K R Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution (advisory jurisdiction). The question was whether “consultation” required consultation with several judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”. In response, the Supreme Court laid down 9 guidelines for the functioning of the Coram for appointments and transfers this has come to be the present form of the collegium, and has been prevalent ever since. This opinion laid down that the recommendation should be made by the CJI and his four senior most colleagues, instead of two. It also held that Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted. It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government. Ever since, the collegium has been making recommendations for appointments and transfer of judges.

                  Procedure for appointment in India and United States of America

                  India

                  The pyramidic structure of the Indian judiciary has Supreme court at the highest of it. Then comes the High Courts of various states- most of the states have their own High Courts where as some have common High Courts (e.g. geographic region and Haryana). Then the courts subordinate thereto are at district level so on. The appointment of judges to Supreme Co
                  urt has been provided by the article 124 of the Indian Constitution whereas for appointment in High Courts, the provisions are there in article 217.


                  According to provisions of the Constitution, the judges are to be appointed by the nod of the chief head i.e. the President once consulting the collegium that contains of the jurist of Asian country and therefore the senior-most judges of the Supreme Court, for appointments to the Supreme Court, and for the supreme court, they, at the side of the jurist of a supreme court and its senior-most judges are to be consulted. this is often so the prevailing system of appointment and not like the previous system that concerned Union cupboard too within the appointment method.

                  The appointment of judges to those courts has been continually a debatable and moot topic for general assembly and government likewise. the most reason behind this is often the words mentioned in articles 124 likewise as 217 whose interpretation 3 Judges cases- SP Gupta vs Union of Asian country, Supreme Court Advocate on Record Association vs. Union of Asian country and Special Reference no. 1 case, has light-emitting diode the current system of appointments, outward from the prevailing system of method appointment of judges that prevailed until the year 1981. the method of appointment of judges until 1981 were created by the chief once consultation with the judiciary and it compete a major role, however the dominance of the opinion of the chief since then on the method of appointment of judges were started being doubted that light-emitting diode to judicial interpretations of the term ‘in consultation with the CJI’, thereby keeping the method of appointment of Judges unclear and empty of comprehensibility.


                  United States of America


                  America follows a dual court system meaning each the centralized and therefore the states have their own set of courts, that makes it fifty-one courts for the states and one Court for the centralized.

                  The method of appointment of choose of the Supreme Court is of nice significance within the USA and involves substantial quantity of politics. The appointment usually are in less frequency as any vacancy within the nine-member Supreme occur one time or double throughout the tenure of the United States of America President. The constitutional style of the USA has unbroken the independence of the Court aloof from the Congress as per the Constitution, the president nominates the judges and with the recommendation and consent of the Senate, appoints the choose of the Supreme Court. These judges are appointed for life-time, and that they may be removed solely through legal document by the Congress. Also, no statute provides for the qualification for judicial appointment to the Supreme Court or the lower federal courts.

                    What Can India Learn from the appointment system of judges?


                    The USA got independence around two hundred years before Bharat and therefore its system has been device and additional structured. the essential drawback underlying in Indian system of appointment of decides is that it’s the supposing that to appoint a decide one has got to think sort of a judge and therefore judiciary gets concerned within the method of appointment and unethical appointment or favouritism might follow. In Bharat there’s no selected authority to nominate the potential candidate and therefore judiciary takes up the authority whereas within the USA the candidate is appointive by the manager. As way because the appointment is bothered, in India, the judiciary has got to be consulted by the manager before appointment whereas within the&
                    nbsp;USA, government nominates and once consultation from the Senate or the general assembly makes the appointment, iteration out the judiciary from this method creating it additional clear. Consultation with the Senate suggests that passing of the name by each homes of the general assembly with majority, that makes the extent of issue of appointment high not like the Indian system wherever appointment is straightforward. Therefore, Bharat has got to take bound cues from the appointment system of the USA so it will fill the vacancy as mentioned by ex-CJI TS Thakur and with a decide of quality and this appointment level would attract lesser criticism and would be freelance of any corrupt practices within the method of appointment.

                      Conclusion


                      The process followed for judicial appointment is comparatively easier in India, whereas the process followed in USA is elaborate and higher difficulty level. The main reason that US Judicial system is sounder than that of India is because the appointment of judges are in hands of the other judges itself in India whereas in the US the candidate has to go through screening of both the houses of legislature. Also, the process followed for appointment of Judges in India is a secret whereas in the USA with the elaborate procedure followed, the confirmation hearing with the prospective judicial candidate which is held by the Senate is open to public and broadcasted on radio and television. Therefore, India must learn from the US system of appointment of judges to strengthen its judicial system.

                      The Supreme Court had invited suggestions to improve the collegium in order to make it more efficient and enhanced. On 3rd November, 2015 the Supreme Court released an order with regards to the compilation of all of the suggestions.54 Additional Solicitor General Pinky Anand and Senior Advocate Arvind P. Datar made a report on this behalf. The crux of all the suggestions could be summed up into three major heads. These are the most pressing changes that have to be brought in the collegium to free it from the many evils it festers. They are as following: i. Transparency ii. Eligibility of the judges iii. Secretariat iv. Complaint Mechanism Firstly, the collegium post 1998 was said to be a secretive and opaque body whose decisions and the rationale behind those decisions were not laid open for any kind of scrutiny. Hence a number of suggestions strived to make the collegiums, a transparent and accountable body. There must be well defined criteria to appoint a judge and the same should be made publicly accessible on the Supreme Court’s official website. The candidates should duly reveal all their relations in the judicial fraternity so as to avoid any nepotistic bias that may arise. Fali S. Nariman has however pointed out that too much transparency would also be a hindrance in the process of appointment.55 Secondly, few suggestions pointed out that the eligibility of the judges must be clearly demarcated. They should be interviewed by the collegium and the zone of consideration should be made wider and should not give sole consideration to the relatives of the judges. The judges of tribunals and District Courts should also be considered to be elevated. Thirdly, it was realized that the Judges of the collegium were already burdened with the primary task of adjudication of cases; hence the extra administrative work of the appointment of judges would be cumbersome to perform. Hence, the preliminary tasks of collecting the data with regards to the candidates of appointment, for instance their eligibility and the number of judgments they have delivered, the quality of the judgments etc. This would reduce the burden on the judges of collegium and efficiency would be ensured. Lastly, there is an imminent need for a complaint mechanism for the collegium. If there is any complaint as to the working of the collegium, it shall be duly addressed. Also, if there is a complaint which is prima facie correct, it shall be directly dealt by the Executive. However, frivolous and mischievous complaints should be rejected decidedly. These repetitive confrontations between the judiciary and the executive have failed to give a concrete solution to the problem of the appointment of judges. There exists over 400 vacancies in total of the posts of judges in the Supreme Court and all the High Courts combined. This problem is a more pressing issue and would seriously undermine the efficiency of judiciary. The question which all the constitutional functionaries should ask themselves while determining the fate of the appointment of judges is, that what is a more dire need, the independence of judiciary or the efficiency of judiciary? Are these two factors, the independence and the efficiency, two completely separate factors or instead are totally inter dependent on each other? Should independence of judiciary depend upon the efficiency of judiciary and vice versa? From the inception of this debate, that is, from the inception of the constitution itself, there has been no actual focus on the efficiency of judiciary. It has forever been treated on side-lines of the major issue and that is of the primacy of opinion and the independent judiciary. But the issue of efficiency of judiciary has to be at the epicentre of any kind of debate involving the independence of judiciary. With the vacancies in the courts and the heavy backlog of the cases, there has to be some quick action taken to solve these problems. An efficient judiciary is the need of the day. The latest 4th Judges case might have given the upper hand to the Judiciary in the matter of appointment of judges, but it has raised substantial question on its slowly growing power of judicial review. Indian judiciary has emerged out to be one of the most powerful judiciaries in the world. And example can be seen in this case itself. Judiciary being the sole interpreter of the Constitution and the determinant of the basic structure has endowed itself with such exemplary power which is not healthy for any democratic country. But, to say that the judiciary must be docile to the whims and fantasies of the Parliament and executive, is also a poison to the democracy, because then the whole structure of checks and balance would come blithering down. The process followed for judicial appointment is comparatively easier in India, whereas the process followed in USA is elaborate and higher difficulty level. The main reason that US Judicial system is sounder than that of India is because the appointment of judges are in hands of the other judges itself in India whereas i
                      n the US the candidate has to go through screening of both the houses of legislature. Also, the process followed for appointment of Judges in India is a secret whereas in the USA with the elaborate procedure followed, the confirmation hearing with the prospective judicial candidate which is held by the Senate is open to public and broadcasted on radio and television. Therefore, India must learn from the US system of appointment of judges to strengthen its judicial system.


                        The Supreme Court had invited suggestions to improve the collegium in order to make it more efficient and enhanced. On 3rd November, 2015 the Supreme Court released an order with regards to the compilation of all of the suggestions.54 Additional Solicitor General Pinky Anand and Senior Advocate Arvind P. Datar made a report on this behalf. The crux of all the suggestions could be summed up into three major heads. These are the most pressing changes that have to be brought in the collegium to free it from the many evils it festers. They are as following: i. Transparency ii. Eligibility of the judges iii. Secretariat iv. Complaint Mechanism Firstly, the collegium post 1998 was said to be a secretive and opaque body whose decisions and the rationale behind those decisions were not laid open for any kind of scrutiny. Hence a number of suggestions strived to make the collegiums, a transparent and accountable body. There must be well defined criteria to appoint a judge and the same should be made publicly accessible on the Supreme Court’s official website. The candidates should duly reveal all their relations in the judicial fraternity so as to avoid any nepotistic bias that may arise. Fali S. Nariman has however pointed out that too much transparency would also be a hindrance in the process of appointment.55 Secondly, few suggestions pointed out that the eligibility of the judges must be clearly demarcated. They should be interviewed by the collegium and the zone of consideration should be made wider and should not give sole consideration to the relatives of the judges. The judges of tribunals and District Courts should also be considered to be elevated. Thirdly, it was realized that the Judges of the collegium were already burdened with the primary task of adjudication of cases; hence the extra administrative work of the appointment of judges would be cumbersome to perform. Hence, the preliminary tasks of collecting the data with regards to the candidates of appointment, for instance their eligibility and the number of judgments they have delivered, the quality of the judgments etc. This would reduce the burden on the judges of collegium and efficiency would be ensured. Lastly, there is an imminent need for a complaint mechanism for the collegium. If there is any complaint as to the working of the collegium, it shall be duly addressed. Also, if there is a complaint which is prima facie correct, it shall be directly dealt by the Executive. However, frivolous and mischievous complaints should be rejected decidedly. These repetitive confrontations between the judiciary and the executive have failed to give a concrete solution to the problem of the appointment of judges. There exists over 400 vacancies in total of the posts of judges in the Supreme Court and all the High Courts combined. This problem is a more pressing issue and would seriously undermine the efficiency of judiciary. The question which all the constitutional functionaries should ask themselves while determining the fate of the appointment of judges is, that what is a more dire need, the independence of judiciary or the efficiency of judiciary? Are these two factors, the independence and the efficiency, two completely separate factors or instead are totally inter dependent on each other? Should independence of judiciary depend upon the efficiency of judiciary and vice versa? From the inception of this debate, that is, from the inception of the constitution itself, there has been no actual focus on the efficiency of judiciary. It has forever been treated on side-lines of the major issue and that is of the primacy of opinion and the independent judiciary. But the issue of efficiency of judiciary has to be at the epicentre of any kind of debate involving the independence of judiciary. With the vacancies in the courts and the heavy backlog of the cases, there has to be some quick action taken to solve these problems. An efficient judiciary is the need of the day. The latest 4th Judges case might have given the upper hand to the Judiciary in the matter of appointment of judges, but it has raised substantial question on its slowly growing power of judicial review. Indian judiciary has emerged out to be one of the most powerful judiciaries in the world. And example can be seen in this case itself. Judiciary being the sole interpreter of the Constitution and the determinant of the basic structure has endowed itself with such exemplary power which is not healthy for any democratic country. But, to say that the judiciary must be docile to the whims and fantasies of the Parliament and executive, is also a poison to the democracy, because then the whole structure of checks and balance would come blithering down. Thus, all the 3 organs of the Government. ought to attempt to notice truth spirit of our Constitution that was summed up by Dr. B.R. Ambedkar that the absolutism of any kind would result into a inferior growth of the state. Participative harmony between all the organs of the Government. is that the would like and demand for any healthy democratic nation. it’s up to those organs to convey up their collective egos and move forward with the thought of the larger smart in mind. This larger smart is nothing however the comprehensive development of our nation with social, economic and political justice rendered to all or any. On 3rd October, 2017 the collegium created a historic move by deciding to transfer its recommendations and reasons of recommendations or reasons of rejection of choice of judges.57 it absolutely was appreciated by all, although a couple of termed it ‘cosmetic.’ however presently the conflict between right to name and right to data emerged. because the reasons of rejections contained adverse remarks against the judges or advocates, this might go against their name. this might be resolved if reasons of rejections is in person communicated to the candidates. A larger transparency would bring larger believability and quality to judicial appointments.
                        – The separation of powers could be a elementary guarantee of the in
                        dependence of the judiciary. within the decision-making method, judges ought to have freedom to make your mind up cases impartially, in accordance with their interpretation of the law and also the facts. they ought to be able to act with none restriction or improper influence. The appointment of judges is a very important facet of judicial independence which needs that in administering justice judge sought to be free from all forms of direct or indirect interference or influences. The principle of the independence of the judiciary seeks to make sure the liberty of judges to administer justice impartially, with none worry or favour. This freedom of judges features a shut relationship with judicial appointment as a result of the appointment system features a direct concerning the non-partisanship, integrity and independence of judges independence. Collegium system in Republic of India is that the system by that the judges are appointed by the judges solely conjointly observed as “Judges- selecting- Judges”. it’s the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, associate degreed not by an Act of Parliament or by a provision of the Constitution. The Central government has criticised spoken communication it’s created associate degree imperium in imperio (empire among associate degree empire) among the Supreme Court. The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and also the 99th Constitutional modification that wanted to convey politicians and civil society a final say within the appointment of judges to the best courts. this technique is criticised as a result of it’s thought-about to be non-transparent as there’s no official mechanism concerned. There are not any prescribed norms concerning the eligibility criteria or maybe choice criteria. The NDA government has tried double to interchange the collegiums system with National Judicial Appointments Commission (NJAC) to deal with the issues however unsuccessful and also the collegium system still prevailing however the parliament has caught up the method of appointment and is drafting the MoP( note of Procedure) to guide future appointments in order that issues concerning lack of eligibility criteria and transparency can be redressed. Collegium System for judicial appointment could have some benefits and downsides and so, no explicit system may be treated because the best system. Despite this, so as to keep up public confidence within the appointment system and judicial independence.

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                          References


                          • List of Books
                          • Appointment of Judges in Supreme Court – Arghya Sengupta
                          • Referred to various articles from the constitution of India.
                          • List of Articles
                          • Judicial Appointments Mechanism in India and Independence of Judiciary – A Critical Analysis – Dr. Harunrashid Kadri
                          • Judicial Independence and Collegium System in India – Sunita Kaler
                          • Judicial Appointments in India and the NJAC Judgement – Dr. Anurag Deep

                          • List of Cases
                          • S. P. Gupta v. Union of India
                          • Supreme Court Advocates-on Record Association V/s. Union of India
                          • In re Special Reference 1 of 1998

                          [1] Also known as the Judges’ Transfer case – S. P. Gupta v. Union of India – 1981
                          [2] Supreme Court Advocates-on Record Association V/s. Union of India – 1993
                          [3] In re Special Reference 1 of 1998

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