Whatever the brouhaha over the collegium system, the new judicial appointments commission will have to prove its efficacy.
By Shailendra Singh
Out of chaos comes order. The recent passing of the Judicial Appointments Bill 2014 in parliament was one such upheaval. But why did it evoke such strong passions? What did it replace? Here is a lowdown on the issue.
The bill replaced the collegium system for appointment of judges to higher judiciary. The collegium system had a five-member committee, which included the chief justice of India (CJI) and four seniormost judges of the Supreme Court (SC). However, it had no constitutional validity.
The system has been full of controversy and criticized by the executive as it vests too much power with the judiciary. Senior judges are appointed by the collegium and the executive can only ask it to reconsider a recommendation. It also received a lot of flak for its vagueness and unaccountability and charged with nepotism as critics felt it ignored meritorious candidates. Some of its critics included the Law Commission of India chairman, Justice AP Shah, and senior Supreme Court lawyer Harish Salve.
However, CJI RM Lodha said he was the first batch of judges from the system while Justice Nariman was the last. “If the collegium has failed, then its products (the judges) too are failures and the judiciary as a whole has failed the country,” Lodha retorted. “As an institution, the collegium had its limitations in selecting persons. After all, judges too come from the same society. But to carry on a campaign just because of allegations against one or two judges is unfair,” was his plaintive cry.
What does the constitution say about it? Article 124 says that the president has the right to appoint Supreme Court judges after consulting with CJI and other SC judges. Similarly, Article 217 says the president has the right to appoint high court judges after consultation with the CJI and the governor of the state.
But various governments wanted to do away with the collegium system. Finally, the Judicial Appointments Bill was passed. According to it, a six-member Judicial Appointments Commission will recommend the president on the appointment and transfer of judges. These include the CJI, the law and justice minister, two seniormost judges of SC and two eminent persons. However, critics say there is greater scope for politicians to interfere in judicial appointments. One hopes fair play and justice prevails.
