The Debate
- Union Minister for Law and Justice Kiren Rijiju reignited the debate of NJAC vs Collegium when he commented that the Collegium system of appointment was “opaque” and needed to be reconsidered. This led to the introduction of National Judicial Commission Bill 2022.
The Collegium System
- The current collegium system has evolved over a period of time through the judicial pronouncements. These cases have been mentioned as below:
- First Judges Case (1982)
- SC held that consultation does not mean concurrence
- Gave Primacy to Executive.
- Second Judges Case (1993)
- Court reversed its earlier ruling by changing the meaning of consultation to concurrence.
- Advice tendered by CJI is binding.
- CJI would take into account the views of two of his seniors most colleagues.
- Third Judges Case (1998)
- Court gave primacy to the opinion of CJI in the matter of appointment of Judges
- However, Chief Justice must consult four seniors most judges of SC.
- Opinion of all members of the collegium should be in writing.
- If the majority of the collegium is against the appointment of a particular person that person shall not be appointed.
Requirement of NJAC
- Opaque and Unaccountable System: In collegium system there is lack of information based on which judges make their choices. Without transparency the collegium loses credibility and legitimacy to be accepted by all stakeholders.
- Conflict of Interest: Presently there is no structured process to investigate if a judge recommended by collegium and its members have any conflict of interests in appointing that judge.
- Stifling Diversity of Judges: Collegium system prefers practising lawyers rather than appointing and promoting judges of the subordinate judiciary. As a result of this, the composition of the high courts becomes, literally, an “old boys’ club” featuring largely male, upper-caste, former practising lawyers.
- Gender Imbalance: For 37 years of the Supreme Court’s existence, it had appointed only male judges. In 1989, Fathima Beevi became the first woman to be elevated to the Supreme Court to be a judge by collegium. Till now total of 11 women judges had been appointed.
- Transfer of Judges: At times the senior most judges of high court are transferred before their elevation as chief justice questioning the timing and intention of collegium.
National Judicial Commission Bill, 2022
- A private member bill was introduced by CPI (M)’s Bikash Ranjan Bhattacharya in Rajya Sabha on Friday to regulate the appointments of judges to the High Courts and the Supreme Court.
- The proposed law also aims to lay down judicial standards and provide for accountability of Judges, and establish “credible and expedient” mechanisms for investigating individual complaints for misbehaviour or incapacity of a Judge of the Supreme Court or of a High Court and to regulate the procedure for such investigation.
- Removal of Judges: The bill proposes “presentation of an address” by Parliament to the President in relation to proceeding for removal of a Judge and for matters connected therewith or incidental thereto.
