Model Answer
0 min readIntroduction
The appointment of judges to the higher judiciary in India has been a subject of continuous debate and reform. Rooted in the constitutional framework outlined in Articles 124 to 147, the process has evolved significantly over the decades. Initially, the executive held considerable sway, leading to concerns about political interference. This prompted the emergence of the ‘Judges Cases’ which established the primacy of the judiciary in appointments. More recently, the attempt to establish the National Judicial Appointments Commission (NJAC) through the 99th Constitutional Amendment (2014) and its subsequent striking down by the Supreme Court, have further complicated the landscape. The current system, largely based on the collegium system, continues to face scrutiny regarding transparency and accountability.
Early System & The Rise of the Judiciary (Pre-1993)
Initially, the President, on the advice of the Council of Ministers (effectively the executive), appointed judges. This system, prevalent until the 1980s, was criticized for its susceptibility to executive influence and potential for political favoritism. Concerns were raised about the independence of the judiciary. This led to the first ‘Judges Case’ (1982), where the Supreme Court held that the ‘advice’ of the Chief Justice of India (CJI) was not binding on the President.
The Collegium System (1993-2014)
The second ‘Judges Case’ (1993) and the third ‘Judges Case’ (1998) fundamentally altered the appointment process. The Supreme Court established the ‘collegium system’, granting the CJI and a group of senior judges (the collegium) the primary role in recommending appointments and transfers. This was intended to safeguard judicial independence. The collegium, typically comprising the CJI and four senior-most judges of the Supreme Court, makes recommendations for appointments to the Supreme Court and High Courts.
- Advantages: Enhanced judicial independence, reduced executive interference.
- Disadvantages: Lack of transparency, absence of accountability, potential for nepotism and favouritism, exclusion of diverse perspectives.
The National Judicial Appointments Commission (NJAC) – A Failed Attempt (2014-2015)
In response to criticisms of the collegium system, the 99th Constitutional Amendment (2014) and the accompanying National Judicial Appointments Commission Act (2014) were enacted. The NJAC aimed to create a broader, more inclusive body for judicial appointments, comprising the CJI, two senior-most judges, the Law Minister, and two eminent persons nominated by a committee consisting of the Prime Minister, the CJI, and the Speaker of the Lok Sabha.
However, the NJAC was struck down by the Supreme Court in Supreme Court Advocates-on-Record Association v. Union of India (2015). The Court held that the NJAC was constitutionally invalid as it undermined the principle of judicial independence and altered the ‘basic structure’ of the Constitution.
The Current System (Post-2015)
Following the striking down of the NJAC, the collegium system was revived, albeit with some modifications. The Supreme Court has attempted to enhance transparency by publishing the names of recommended candidates and seeking feedback from High Courts. However, the core structure of the collegium remains unchanged. Recent debates revolve around making the collegium’s deliberations more transparent and establishing a formal mechanism for addressing grievances related to appointments.
The Memorandum of Procedure (MoP) governing the appointment process is currently under revision, with the government and judiciary engaged in discussions to address concerns regarding transparency and accountability. The government has repeatedly raised concerns about the lack of a formal mechanism for rejecting names recommended by the collegium.
Comparative Analysis
| Feature | Executive-Dominated System (Pre-1993) | Collegium System (1993-2014 & Post-2015) | NJAC (2014-2015) |
|---|---|---|---|
| Appointment Authority | President (on advice of Executive) | Collegium (CJI & Senior Judges) | NJAC (CJI, Judges, Law Minister, Eminent Persons) |
| Judicial Independence | Low | High | Moderate (Controversial) |
| Transparency | Low | Low | Potentially Higher |
| Accountability | Low | Low | Potentially Higher |
Conclusion
The debate surrounding judicial appointments in India reflects a fundamental tension between judicial independence and accountability. While the collegium system has successfully shielded the judiciary from executive interference, its lack of transparency and accountability remains a significant concern. The NJAC, despite its noble intentions, was deemed detrimental to the basic structure of the Constitution. The ongoing revisions to the Memorandum of Procedure represent a step towards addressing these concerns, but a more comprehensive and inclusive solution, balancing judicial independence with public scrutiny, is needed to ensure a robust and credible judicial appointment process.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.