Appointments of Judges: Collegium verses Appointment Commission

The recent judgement of supreme court surprised the whole India as it struck down the provisions of NJAC (national judicial appointment commission)as unconstitutional and consented the continuation of collegium system. This has further complicated the situation instead of solving the problems of appointments of judges in judiciary system and making it fair in the eyes of people .

Initial constitutional provisions of the constitution stated that the judges would be appointed by the government in consultation with the Chief Justice of India. Government was not bound by the decision of CJI. This used to create confusion and controversy about the independence of judiciary with the government. However the various judgments later on given by the Supreme court beginning 1982 made the role of judiciary supreme and accordingly in 1993 collegium system was introduced. Under this system judges in supreme court and high court were appointed by the penal of top 5 supreme court existing judges. Selected names are to be sent to executive(government ) for approval. Government may return that proposal for reconsideration but if sent for ratification the recommendation of the judges(judiciary) are binding on government.

In past there have been many cases in which doubts were created about the most suitable candidates for judges as certain section of the society felt that the collegiums was itself a opaque system and it lacks accountability and objectivity of appointment of new judges. It was based on discretionary powers to the judges. Therefore a new system was enacted by parliament vide 99th amendment in constitution in 2014 to regulate the procedure in appointment of judges and to make choices free from personal biases. Accordingly NJAC (National Judicial appointment commission) was brought in to action. Under this system a panel of law minister, 2 eminent citizen, leader of opposition in the parliament , CJI, senior most SC judges and prime minister will jointly decide about the appointment of judges. This system was passed by parliament and the same was ratified by the 20 states and union territories.

This system was implemented from April 2015 but could not be,as CJI refused to be part of NJAC.This was due to various petition filed in the supreme court against the amendment. Finally NJAC was declared unconstitutional. Now NJAC has been struck down and there is again a confusion about the supremacy of parliament .

No system in itself is complete. It is much necessary that in the collegium system the transparency need to be enhanced and adhocism need to be curtailed. This fact was reiterated by the two judges who held that the collegium system lacked transparency and excluded the deserving candidates. There should be nothing controversial in the appointment of judges as it would be for the welfare of the society only and whatever the system is implemented it should certainly reflect the independence along with the caliber and capability of the judges who are appointed.

To adhere to this principle Supreme court will be hearing certain petition very soon about the changes which may lead to strengthening of the present collegium system.. For the government it will be necessary to ensure independence of judiciary system and to weed out things which are hampering the transparency in the appointment of judges.

As the matter it is of great Importance it may further take some more time to finally settle down.

Inputs Kshitij Gupta