SUPREME COURT TO GOVT. ON JUDICIAL POSTINGS & BACKLOG

Context:

• The Supreme Court asked the government to clarify on the status of 55 recommendations made by the Collegium for judicial appointments to various High Courts even earlier than 2020 in some cases.
• The Supreme Court also pushed for the appointment of retired judges to battle pendency of cases in High Courts.

Relevance:

GS-II: Polity and Governance (Constitutional Provisions, Indian Judiciary)

Dimensions of the Article:

1. What is the Collegium System?
2. Evolution of the Collegium system
3. Working of the Collegium System and NJAC
4. About the pending recommendations
5. Regarding appointment of Retired judges to fill the vacancies
6. Ad-hoc Judges

What is the Collegium System?

• 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 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.

Evolution of the Collegium system

• In the First Judges case (1982), the Court held that consultation does not mean concurrence and it only implies an exchange of views.
• In the Second Judges case (1993), the Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence.

Third Judges Case, 1998:

• In the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief Justice of India requires “consultation of a plurality of judges”.
• The sole opinion of the CJI does not constitute the consultation process. He should consult a collegium of four senior-most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.
• The court held that the recommendation made by the Chief Justice of India (CJI) without complying with the norms and requirements of the consultation process is not binding on the government.
• The Collegium system was born through the “Third Judges case” and it is in practice since 1998. It is used for appointments and transfers of judges in High courts and Supreme Courts.
• There is no mention of the Collegium either in the original Constitution of India or in successive amendments.

Working of the Collegium System and NJAC

• The collegium recommends the names of lawyers or judges to the Central Government. Similarly, the Central Government also sends some of its proposed names 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 the time limit is not fixed to reply. This is the reason that appointment of judges takes a long time.
• Through the 99th Constitutional Amendment Act, 2014 the National Judicial Commission Act (NJAC) was established to replace the collegium system for the appointment of judges.
• However, the Supreme Court upheld the collegium system and struck down the NJAC as unconstitutional on the grounds that the involvement of Political Executive in judicial appointment was against the “Principles of Basic Structure”. i.e., the “Independence of Judiciary”.

About the pending recommendations

• The Supreme Court asked the Attorney General of India to enquire with the Union Ministry of Law and Justice and make a statement on the decision regarding the appointment of judges recommended by the collegium as the delay was a matter of grave concern.
• The Supreme Court Bar Association said that there was a need to institutionalise a process for considering advocates practising in the top courts to judgeships in the High Courts.
• The total sanctioned judicial strength in the 25 High Courts is 1,080. However, the present working strength is 661 with 419 vacancies as on March 1 2021.

Regarding appointment of Retired judges to fill the vacancies

• The SC bench said that retired judges could be chosen on the basis of their expertise in a particular field of dispute and allowed to retire once the pendency in that zone of law was over.
• The Bench said retired judges who had handled certain disputes and fields of law for over 15 years could deal with them faster if brought back into harness as ad-hoc judges.
• The court said the appointment of ad-hoc judges would not be a threat to the services of other judges, as Ad-hoc judges will be treated as the junior most.

Ad-hoc Judges

• The appointment of ad-hoc judges was provided for in the Constitution under Article 224A (appointment of retired judges at sittings of High Courts).
• Ad hoc judges can be appointed in the Supreme Court by “Chief Justice of India” with the prior consent of the President if there is no quorum of judges available to hold and continue the session of the court.
• Only the persons who are qualified to be appointed as Judge of the Supreme Court can be appointed as ad hoc judge of the Supreme Court (Article 127).
• Further, as per provisions of Article 128, Chief Justice of India, with the previous consent of the President, request a retired Judge of the Supreme Court High Court, who is duly qualified for appointment as a Judge of the Supreme Court, to sit and act as a Judge of the Supreme Court.
• The salary and allowances of such a judge are decided by the president.
• The retired Judge who sits in such a session of the Supreme Court has all the jurisdiction, powers and privileges of the Judges, but are NOT deemed to be a Judge.

-Source: The Hindu