OpEd Analysis – Criteria for appointment of judges for courts

OpEd Analysis - Criteria for appointment of judges for courts

Context :- Judges Appointment 

On November 2, four new judges were elevated to the Supreme Court but neither the Collegium’s discussions on the appointees, as published on the court’s website, nor the popular discourse on the persons chosen concern themselves with a discussion on the records of these judges. Now We are left with little idea, for instance, on

What broad constitutional philosophy these judges espouse ?
What their approach to constitutional interpretation might be  ?
How they might view the general role of the higher judiciary ?

Constitutional provisions :- The Constitution comprises a number of special clauses

  • It provides a fixed tenure for judges of the Supreme Court and the High Courts
  • It also ensures that salaries and allowances of judges are charged directly to the Consolidated Fund of India
  • The constitution confers powers on the courts to punish for contempt of themselves
  • It ensures that judges can only be removed through a process of parliamentary impeachment

Executive role :- 

The framers of the constitution always believed that the power to appoint judges must vest with the executive. Accordingly, the Constitution provides, in broad terms, that judges to the Supreme Court would be appointed by the President in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit.

SC prescribed methods to resist Executive interference :-

The Supreme Court replaced the consultative method prescribed by the Constitution with one that gave the CJI and his four senior-most colleagues (the “Collegium”) primacy in selecting candidates. This system has proved to be notoriously opaque

Efforts to replace it with a National Judicial Appointments Commission (NJAC) came up a cropper after the court struck down the 99th constitutional amendment, in Supreme Court Advocates-on-Record Association v. Union of India (2015)

The primacy enjoyed by the collegium in making appointments to the higher judiciary, the court declared, was a part of the Constitution’s basic structure

Reasoning for appointments are weak :-

  • Relative seniority of these judges
  • Extent of State-wise representation
  • The candidates’ merit also gets considered but given that the criteria for selection are entirely unknown, what merit means remains ambiguous
  • In any event, the general constitutional values of a nominee have never been seen as a benchmark to review merit.

The publication of the collegium’s decisions has shown us that the collegium’s workings are mysterious and undemocratic. The government is also not pushing for reforms because for the most part, the government is happy with this arrangement. It clears some recommendations with alacrity while holding back, often for months on end, others comprising nominees that it deems uncomfortable

What do we need ? 

  • We need an independent body which must be independent of the executive, but, at the same time, must be subject to greater transparency and accountability
  • This commission must also partake within it a facility for its members to have forthright discussions over the constitutional philosophies that a judge must possess

Way forward :- If we fail to bring these issues to the forefront, the rigours of democracy will never permeate into the judiciary & we will only be further undermining public trust in the credibility of the judicial review

Source :- The Hindu 

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