Recent comments by former Chief Justice DY Chandrachud have reignited discussions on India’s judicial appointment process. He emphasized the shared veto power between the judiciary and executive, highlighting tensions in the system. The Supreme Court collegium, responsible for judicial appointments, has faced criticism for opacity and delays, and the debate continues on how to balance judicial independence with accountability and transparency.
New Delhi: India’s judicial appointments have long been a topic of contention, but recent remarks by former Chief Justice of India (CJI) DY Chandrachud have reignited the debate. In an interview with CNN-News18, Chandrachud addressed delays in judicial appointments and offered a nuanced perspective, stating: “It is not just the government that has a veto; the judiciary too has it.” His comment underscores the complex and often contentious relationship between the judiciary and the executive in appointing judges.
Let’s delve into the Supreme Court collegium system, its evolution, recent recommendations, and the criticisms surrounding it.
What Is the Supreme Court Collegium?
The Supreme Court collegium is the system responsible for the appointment and transfer of judges in the higher judiciary. This forum, headed by the Chief Justice of India, comprises the four senior-most judges of the Supreme Court. Its primary functions include:
- Recommending judges for the Supreme Court and High Courts.
- Appointing Chief Justices of High Courts.
- Transferring judges across High Courts.
Decisions within the collegium are made based on majority opinion. For High Court appointments, a separate High Court collegium suggests names, which are reviewed by the Supreme Court collegium before final recommendations.
What Does the Constitution Say?
The collegium system isn’t explicitly mentioned in the Indian Constitution but derives its authority from judicial interpretations of constitutional provisions:
- Article 124: Deals with the appointment of Supreme Court judges, stating they are appointed by the President after consulting the Chief Justice of India and other judges deemed necessary.
- Article 217: Specifies that High Court judges are appointed by the President following consultations with the CJI, the Governor of the state, and the Chief Justice of the respective High Court.
These provisions highlight the consultative role envisioned for the judiciary, but they left room for interpretation, eventually giving rise to the collegium system.
The Evolution of the Collegium System
The collegium system emerged through a series of landmark rulings known as the ‘Three Judges Cases’:
- First Judges Case (1981): The court held that the executive should have the primary role in judicial appointments, treating the judiciary’s role as purely advisory.
- Second Judges Case (1993): Overturned the earlier ruling, asserting that the CJI’s opinion should have primacy in appointments.
- Third Judges Case (1998): Clarified that the term “consultation” in Articles 124, 217, and 222 requires the CJI to consult a collegium of senior judges.
These judgments cemented the collegium’s role in judicial appointments and transfers, ensuring “primacy of the judiciary” over the executive in this domain.
What Are the Criticisms of the Collegium System?
The collegium system, despite its intent to ensure judicial independence, has faced significant criticism:
- Opaque Functioning: Critics argue that the collegium operates without transparency, with no formal guidelines for selecting judges or explaining decisions.
- Judicial Vacancies: Delays in recommendations and disagreements with the executive have contributed to a high number of judicial vacancies, impacting the justice delivery system.
- Allegations of Nepotism: Petitions before the Supreme Court have alleged that the collegium fosters favoritism and excludes meritorious candidates without connections.
The National Judicial Appointments Commission (NJAC) Act of 2014 aimed to address these concerns by involving the executive and civil society in appointments. However, the Supreme Court struck it down in 2015, citing a threat to judicial independence.
Recent Collegium Recommendations
The collegium continues to make pivotal recommendations for judicial appointments. Some notable recent decisions include:
- Justice D. Krishnakumar: Recommended for appointment as Chief Justice of the Manipur High Court.
- Saurabh Kirpal: Proposed as a judge of the Delhi High Court. Kirpal’s appointment, however, has faced delays reportedly linked to his open sexual orientation.
- Advocates R. John Sathyan, Amitesh Banerjee, and Sakya Sen: Recommended for appointments in High Courts but awaiting action from the government.
Additionally, several appointments for the Bombay, Kerala, and Andhra Pradesh High Courts have been recommended, though government delays in approvals persist.
The Judiciary vs. The Executive: A Delicate Balance
Chandrachud’s remarks that “judges appoint judges” is a flawed notion and his clarification that both the judiciary and executive hold veto power shed light on the underlying tension. The judiciary sees the collegium system as essential for independence, while the government views it as a closed-door process needing reform.
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Justice Sanjay Kishan Kaul, a senior member of the collegium, recently criticized the government for its “selective” approach to appointments and transfers, calling for greater accountability on both sides.
What Lies Ahead?
The debate around the collegium system reflects the ongoing challenge of balancing judicial independence with accountability. As demands for transparency grow, reforming the collegium system without compromising judicial autonomy remains a pressing need.
DY Chandrachud’s leadership in the Supreme Court collegium brought new momentum to the process, but delayed approvals and ideological differences between the judiciary and executive continue to hinder progress.
Conclusion
The collegium system, while safeguarding judicial independence, has also drawn criticism for its lack of transparency and efficiency. Chandrachud’s assertion that “the judiciary too has a veto” emphasizes the dual responsibility of both branches to ensure fair and timely judicial appointments.
As India’s justice system grapples with mounting caseloads and vacancies, evolving the collegium system into a more accountable and collaborative mechanism could be key to meeting the aspirations of a dynamic democracy.
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