OPEN UP THE SUPREME COURT
09, Apr 2019
Prelims level : Indian Polity and Governance Mains level : GS-II (Important aspects of governance, transparency and accountability)
Why in News:
- The Office of the Chief Justice of India (CJI) was a “public authority”, and therefore, subject to the provisions of the Act. Supreme Court appointments should correspond to transparency under the provisions of RTI Act.
- The question most at issue involved the disclosure of the correspondence of the Collegium. The Collegium includes the five senior-most judges of the Supreme Court, who collectively constitute the selection panel for judicial appointments to the Supreme Court (and the three senior-most judges when it comes to the High Courts. India is one of
- the few countries where judges have the last word on judicial appointments, through the mechanism of the Collegium.
- The Collegium is therefore, a tool to secure and guarantee the independence of the judiciary.
- In 2015, the Supreme Court struck down a constitutional amendment establishing a National Judicial Appointments Commission (NJAC), which would have replaced the Collegium. Appointment in other Countries:
- In the United States, for example, candidates for judicial appointments in the federal judiciary are subjected to public confirmation hearings by the Senate. In Kenya and South Africa, the interviews of candidates taken by judicial appointments commissions are broadcast live
Advantages of Judiciary under RTI:
- It ensures judicial primacy in the appointments process
- It is only permissible way in which this system can work making it immune to transparency. It involves maintaining public faith in the impartiality of the institution.
- The Collegium System is a system under which appointments/elevation of judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex Court are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. There is no mention of the Collegium either in the original Constitution of India or in successive amendments.
- The Collegiums System of appointment of judges was born through “Three Judges case”
- which interpreted constitutional articles on October 28, 1998.
- The recommendations of the Collegium are binding on the Central Government; if the Collegium sends the names of the judges/lawyers to the government for the second time.
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.
Points against the Collegium System:
- Inspite of being a democracy, the judges appoint judges in India.
- Collegium System could not appoint judges as per the vacancies in the courts due to various reasons. If the constitution makers had liked this way of appointment of judges, they would have envisaged it in the original constitution itself. Collegium System is recommending the appointment of the judges without.