Model Answer
0 min readIntroduction
The independence of the judiciary is a cornerstone of India's constitutional framework. The process of appointing judges to the higher judiciary has been a subject of continuous debate and reform. The 99th Amendment Act, 2014, aimed to introduce a mechanism for greater executive participation in judicial appointments, ostensibly to address concerns regarding transparency and accountability. However, its subsequent constitutional validity was challenged and partially struck down, leaving the present system in a state of flux. This answer will examine the underlying principle of the 99th Amendment and comment on the current system of judicial appointments, highlighting its evolution and inherent challenges.
The Evolution of Judicial Appointments in India
Initially, appointments to the higher judiciary were largely executive decisions, mirroring the British model. The First and Second Judges Cases (1982 and 1993) significantly altered this landscape. The Supreme Court, through these judgments, established the collegium system, where the Chief Justice of India (CJI) and senior judges collectively recommend appointments. This system aimed to insulate judicial appointments from undue political influence.
The 99th Amendment Act, 2014: An Attempt at Reform
Recognizing concerns about the lack of transparency and accountability in the collegium system, the Parliament passed the 99th Amendment Act, 2014. Its key provisions included:
- Establishing a National Judicial Appointment Commission (NJAC) to recommend appointments.
- The NJAC would comprise two senior judges of the Supreme Court, two senior judges of High Courts, three eminent jurists (to be appointed by a committee comprising the Prime Minister, the Leader of the Opposition, and the CJI), and two members of the Lok Sabha and Rajya Sabha.
- The NJAC’s recommendations would require a two-thirds majority of its members and confirmation by the Parliament.
The underlying principle was to introduce objectivity and public participation in the appointment process, addressing concerns that the collegium system was opaque and prone to arbitrary decisions. The government argued that the NJAC would ensure a more diverse and representative judiciary.
The Current System: A Hybrid Approach
The NJAC Act was declared unconstitutional by a five-judge bench of the Supreme Court in 2015. The Court held that the NJAC undermined judicial independence by giving the executive a significant role in appointments. The Court reaffirmed the collegium system as the prevailing mechanism, although it acknowledged the need for improvements.
The current system operates as a modified collegium system. The CJI consults with senior judges to recommend names, which are then placed before the government for their opinion. The government can return the recommendations for reconsideration, but the collegium’s decision is ultimately binding. There's no formal published criteria for selection, leading to concerns about transparency.
Analysis of the Present System – Strengths and Weaknesses
The present system, while upholding judicial independence, faces several challenges:
Strengths:
- Judicial Independence: The collegium system, as reaffirmed by the Supreme Court, safeguards the judiciary from executive interference.
- Experience and Expertise: Appointments are made by judges familiar with the legal profession and judicial processes.
Weaknesses:
- Lack of Transparency: The process remains largely opaque, with limited public scrutiny of candidates.
- Accountability Deficit: The collegium is not directly accountable to the public.
- Limited Diversity: Concerns exist regarding the lack of diversity (caste, gender, regional) among judges appointed.
- Executive-Judiciary Friction: The system has created friction between the executive and judiciary, with frequent disagreements over appointments.
- Delay and Pendency: The process can be lengthy, contributing to the backlog of cases in the higher judiciary.
| Aspect | Collegium System (Pre-99th Amendment) | Current System (Post-99th Amendment & SC Ruling) |
|---|---|---|
| Decision Making | CJI and senior judges | CJI and senior judges (binding on executive) |
| Executive Role | Minimal, advisory role | Advisory role with power to seek reconsideration |
| Transparency | Low | Low |
| Accountability | Limited | Limited |
Case Study: Appointment of Justice K.M. Joseph
The appointment of Justice K.M. Joseph to the Supreme Court in 2019 highlighted the tensions between the executive and the judiciary. The government initially withheld his elevation, reportedly due to concerns about his views on certain issues. This led to a public spat and ultimately, Justice Joseph’s appointment, but underscored the power dynamics at play in the appointment process.
Recent Developments & Potential Reforms
Several committees have been constituted to explore reforms to the judicial appointment process. The 2026 Committee, for instance, suggested a more transparent and accountable collegium system. There's ongoing debate regarding the inclusion of more objective criteria for selection and the possibility of a permanent secretariat to manage the appointment process. The recent Constitution Bench judgments on the issue continue to shape the understanding and operation of the system.
Conclusion
The 99th Amendment Act, 2014, represented a sincere attempt to address the shortcomings of the collegium system and introduce greater transparency and accountability in judicial appointments. While the Supreme Court’s decision to strike down the NJAC Act reaffirmed the principle of judicial independence, it also highlighted the need for reforms within the collegium system itself. Moving forward, a balanced approach is required – one that safeguards judicial independence while ensuring greater transparency, accountability, and diversity in the appointment of judges to the higher judiciary. This requires a continuous dialogue between the executive, judiciary, and the bar, with a focus on building consensus and fostering a culture of mutual respect.
Answer Length
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