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Collegium System

Posted on August 12, 2021 by admin1  25

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The Supreme Court has alleged the Government of delaying Collegium recommendations on the appointment of judges to High Courts.

What are the fallouts of such steps by the executive?

  • High Courts with skeletal judicial strength
    • Delhi High Court will be with less than 50% judges in August 2021, having only 29 judges out of a strength of 60 judges.
  • Delayed adjudication of commercial disputes
    • As this observation of SC came during a anti-dumping proceedings, SC observed it will hamper business litigation
  • Delayed Governance:
    • It will also create problems in the smooth functioning of government as the government, itself, is one of the largest litigants in India.
  • Pending Cases
    • The number of pending cases is too high (around 57 lakh as per National Judicial Data Grid)

What is the Collegium System?

  • It is a novel mechanism devised to ensure a democratic system of appointment and transfer of judges
    • It came into existence through Second and  Third Judges Case judgments.
    • Please note: There is no such law or constitutional provision that mentions or defines the collegium system.
  • It is headed by the CJI and comprises 4 other senior-most judges of the court.
  • An HC collegium is led by its Chief Justice and four other senior-most judges of that court.
  • NJAC was thought of as a replacement of the Collegium System but it was invalidated by the Supreme Court.

What are constitutional Provisions backing it?

  • Article 124(2): The Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
  • Article 217: The Judge of a High Court shall be appointed by the President in consultation with the CJI and the State Governor, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Role of Government in Judicial Appointment

  • The government’s role is limited.
  • It can only get an inquiry conducted by the Home Ministry if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
  • It can also raise objections and seek clarifications regarding the collegium’s choices.
    • But if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

 

What is its importance in Democracy?

  • Participatory consultative process
    • In 1993, the second judges case held the process of appointment of Judges to the SC and the HCs as an integrated ‘participatory consultative process’.
      • The aim is to select the best and most suitable persons available for appointment.
    • All the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision.
  • Adherence to Highest Democratic Ethical Principles:
    • Judges, in general, have shown adherence to highest ethical and moral conduct.
    • They display attributes essential for making an able, independent and fearless judge.
    • Further they had “legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness.
  • Many new people friendly innovations:
    • Indian judiciary has developed multiple instruments like Public Interest Litigation (PIL) to uphold the democratic value of Justice for all.
    • Further multiple directive related to police reforms, triple talaq, Mob lynching later became the well accepted laws.

Way Ahead

  • Opaqueness.
    • There is a lack of transparency and few allege how the whims and fancies of a few judges decide the fate of the whole Indian judiciary.
  • Scope for nepotism.
    • There are many judges who are kith and kins of former judges ignoring merit.
  • Embroilment in public controversies.
    • Juniors of Delhi High Court Judges were elevated to superior positions which raised eyebrows.
  • Overlooks several talented junior judges and advocates.
    • It demotivates the state judicial services judges and thus violates merit.

 

Source: TH

 
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