Explained: The second judges case

Supreme Court Advocate-on-Record Association v. Union of India, popularly known as Second Judges case, has garnered headlines recently, after a plea to review its order filed by the National Lawyers’ Campaign for Judicial Transparency & Reforms through its secretary, A.C. Philip, & advocate Mathew Nedumpara, was dismissed by a 9 judge bench of the Supreme Court consisting of Chief Justice of India Ranjan Gogoi, his prospective successor, Justice S.A. Bobde, amongst others.

The said bench contemplated upon the petition in chambers and dismissed it on the grounds of an inordinate delay of more than 9000 days an also based on the merits of the case.

Background of the issue:

India’s judicial system, consisting of the Supreme court at the top and other state high courts: plays a crucial role in ensuring transparency in the contemporary system. The rise of several factors has impacted the working of the judiciary. These changes have created a breeding ground for conflicts between the two organs of the government- the executive and judiciary.

It can primarily be stated that the Supreme Court, which tops the hierarchy of the judicial system of India, does not ordinarily sit en banc. Unfortunately, even in the contemporary scenario, there is a dearth of knowledge on how judges are appointed and elevated in the judicial system of India.

The mode of appointment of judges in itself has been riddled with controversies. It has been subjected to public scrutiny since the early 1960s. However, the glare upon the issue increased when the judges themselves evolved the methodology to appoint and promote themselves.

Today judges are appointed and elevated following the methodology evolved through the judicial pronouncements in the Judges’ cases: a series of judgments that shaped the present collegium system. The power struggles between the executive and judiciary now revolve around the domain of separation of powers and checks and balances.

Salient features of the judgment:

Change was brought about in the selection of judges of the courts after the provisions were subjected to the rigors of judicial interpretation in three judgments of the Supreme Court: S.P. Gupta v. Union of India (1981) also known as the Judges transfer case, Supreme Court Advocates-on Record Association v. Union of India (1993), also known as second judges case, and Re: Special Reference (1998), the third judges case.

The interpretation of the word ‘consultation’ appearing in Article 124 and Article 217 of the Indian constitution was the subject matter for the First Judges case. In the Second Judges’ case, A collegium was created by the majority, which comprised of the chief justice and two senior-most judges for selecting new appointees subsequently enlarged in the Third Judges’ case.

Changes were also made in the methods of appointment wherein a judicial collegium was created amongst the judges for recommendations and elevation of judges. The bench laid down that the Chief Justice of India was mandatorily required to consult, seek, and concur with the choice of two senior-most judges before sending a recommendation to the President of India. The court also expanded the scope of the word “Consultation” by comparing it with the term “Concurrence.”  

While the Collegium system for judicial appointments amongst the judges was not described within the original framework of the Constitution(and no attempt to amend the provisions to include this provision was made), the criticism on this pronouncement was limited because it did not leave judicial appointments in the hand of one individual.

A COMPARATIVE ANALYSIS

  Collegium NJAC
Definition   Under the collegium system, the Chief Justice of India and two senior-most judges make judicial appointments to the Supreme Court and High Courts of India. This system was promulgated after the judgments in the Second and Third Judges case. National Judicial Appointment Commission (NJAC) consists of representatives of both the government and the judiciary.
Panel Chief Justice of India assisted by two or four senior-most judges of the court make the appointments. A body comprising six members — Chief Justice of India, two seniormost judges of the Supreme Court, Union minister of law & justice, and two eminent persons nominated by CJI or the prime minister or the leader of the Opposition in the Lok Sabha.
Merit The Constitution has laid down some basic qualifications for the appointment of judges, which is common to both the systems. Additional Criteria-(Informal Criteria of Collegium) 1.Age – A prospective appointee should be at least 55 years of age in order to be considered eligible to be appointed to Supreme Court. 2.Seniority- The prospective appointee should be a Senior State Court judge or Chief Justice of a State Court. 3. Diversity- Appointment should reflect geographic, ethnic, and gender diversity. The basic qualifications prescribed by the constitution in case of appointment of a judge to SC are: He/She must be an Indian Citizen; five years experience as a judge of HC/ 10 years standing as an HC Advocate/ distinguished jurist in the opinion of the President.

Criticism of the collegium system:

Collegium system has been criticized on several grounds-

  • The assumption that the judges alone are competent enough to ensure independence in the judiciary and to prevent interference in its functioning.
  • Elevation under the collegium system is based on personal impressions made on the judges of the court rather than skills and ability.
  • Judges are often appointed to suit the needs and requirements of the ruling party, and this creates an imagery of a barter practiced between the executive and judicially, defeating the very objective of the collegium system
  • Executive interference and nepotism are prevalent in this method of appointment of judges.
  • The subjective bias of the judges plays a dominant role in the elevation of judges. The collegium system has also been criticized on the grounds of lacking transparency as no reasoning is stated for any appointment and rejection.
  • There have been several instances where the principle of seniority has also been bypassed to elevate favored judges.

Conclusion: Road ahead

The criticisms against the collegium system cast a shadow of doubt on the overall efficiency of the system. It is imperative that this system cannot be continued in the interests of transparency, accountability, and smooth functioning of the judiciary.

Several factions of the judicial fraternity have been lobbying for the National Judicial Appointments Commission (NJAC) Act for the appointment and elevation of judges. 99th Constitutional Amendment Act 2014, which aimed at setting up the National Judicial Appointment Commission (NJAC), was dismissed by the judges in the fourth judges’ case.

The amendment was struck down by the Supreme Court for being unconstitutional on 16 October 2015, with a 4:1 majority. In the present scenario, when the system is in shambles due to the wrongs of the collegium system, NJAC needs to be promulgated, and it will serve as a messiah for the Indian Judicial System

–This article is brought to you in collaboration with Tamanna Gupta from Rajiv Gandhi National University of Law, Patiala.

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