A Wish list for Reform in India’s Higher Judiciary : Daily Current Affairs

Relevance: GS-2: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure

Key Phrases: Collegium System, Negative fallout of Age Difference, Constitutional Legitimacy, Second Judges Case, Cadre of Public Service

Why in News?

The proposal for an increase in the retirement age of judges of the Supreme Court of India from 65 to 67 years is under consideration.

Key Highlights:

This will fall during the tenure of Justice U.U. Lalit who by seniority is expected to take over as the Chief Justice of India (CJI) on August 27, 2022.
This alteration in age would affect every successor notably Justice D.Y. Chandrachud who will see a delay in his ascension from November 2022 to November 2024.
As per Art124(2)
- every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years.

What does the Constitution actually prescribe?

Article 124 deals with the appointment of Supreme Court judges.
It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary.
The CJI is to be consulted in all appointments, except his or her own.
Article 217 deals with the appointment of High Court judges.
It says a judge should be appointed by the President after consultation with the CJI and the Governor of the State. The Chief Justice of the High Court concerned too should be consulted.

What is the Collegium System?

It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court (SC), and not by an Act of Parliament or by a provision of the Constitution.

How does the Collegium System Works?

In case of a difference of opinion over the matters in the collegium, the majority view prevails.
Since the Constitution mandates consultation with the Chief Justice of India is necessary for appointments to the judiciary, the collegium model evolved.

Origin Of The Collegium System:

First Judges case (1982):
- The court held that consultation does not mean concurrence, and it only implies an exchange of views.
- It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
Second judges case (1993):
- The court changed the meaning of the word consultation to concurrence.
- It ruled that the advice tendered by the CJI is binding on the President in matters of appointment of SC judges.
- But any such advice would be tendered after the consultation of CJI with two of his most senior-most judges. In other words SC introduced the Collegium system.
Third judges case (1998):
- The CJI should consult a collegium of four senior-most judges before making a recommendation to the President and even if two judges give an adverse opinion, he should not send the recommendation to the President.

Do you know?

In 1973 when A N Ray was appointed as the Chief Justice of India by superseding three senior judges.
In 1977, M U Beg was appointed as the chief justice of India by superseding the then senior-most judge.
Through the 99th Constitutional Amendment Act, 2014 the National Judicial Commission Act (NJAC) was established to replace the collegium system for the appointment of judges.
Supreme Court upheld the collegium system and struck down the NJAC as unconstitutional on the grounds that the involvement of Political Executive in judicial appointment was against the “Principles of Basic Structure”. i.e. the “Independence of Judiciary”.
Master of Roster: It refers to the privilege of the Chief Justice to constitute Benches to hear cases.

Important issues associated with the appointment and working of Judges in the higher judiciary

Negative fallout of Age Difference:
- High Court judges now retire at 62 and Supreme Court judges at 65.
- It is high time that we do away with the disparity between the retirement ages of High Court and Supreme Court judges since there is no good reason for this difference.
- The obvious negative fallout of a differential retirement age simply is intense pressure and competition to make it to the top court and thus get three more years.
- There is much good work that needs to be done in the High Courts and for that, we need good men there.
A Dedicated Cadre of Public Service:
- A very small minority of judges devote themselves to public service. Post retirement Supreme Court judges focus for an appointment to constitutional posts/tribunals/commissions.
- It would be a worthwhile reform to create a cadre of public service for retired judges and from this pool make appointments to the constitutional and statutory posts and special assignments.
- Such judges should receive the full pay and the facilities of a judge of the Supreme Court for life.
- Judges should be barred from arbitrations. Further, if any judge is unwilling to be a part of the cadre and instead wishes to pursue arbitrations post retirement, then senior positions on the Supreme Court such as the membership of the collegium ought not to be available for them.
- We should have a culture of public service for senior judges, and those who do not fit in such a culture should not be a part of senior ranks.
Serve equally under the Constitutional Mandate:
- It is generally assumed that the senior most judge of the Supreme Court should be the Chief Justice of India, but the Constitution mandates no such thing.
- Article 124 inter-alia states that the President will appoint every judge of the Supreme Court, and this includes the Chief Justice, and each of these judges shall hold office until they attain the age of 65 years.
- The requirement about appointing the senior-most judge to be the CJI was devised in the Second Judges case (1993) and has no constitutional legitimacy.
- The public purpose is better served by ensuring that the judges of the Supreme Court during their entire tenure are not swayed by their expectations or aspirations to the higher office of CJI.
- Indeed, any one particular person should not have a vested interest in the top job, and we are better served by eliminating such expectations.
- All the judges, thus, should serve equally under the constitutional mandate during the entire length of their tenure.
Choosing the CJI:
- When a serving CJI retires, his successor should be the best reputed Chief Justice of a High Court who has proved himself worthy both in judicial office and administrative leadership and has the qualities of a good leader.
- The appointee should have a clear three-year term, not the truncated weeks and months that some CJIs get.
- But he should not function as the primus super pares i.e., first among the equals as many CJIs do.
- He should instead function in a true collegiate manner, especially in regard to the roster of allotment of cases, especially the sensitive ones, and appointments to the Supreme Court and High Courts and other important matters of judicial and administrative importance.
- Such a combination of CJI so chosen to work with senior ranking colleagues will make collegiate functionality both a natural course and an imperative necessity.

Conclusion:

Though there are several issues that need reforms in the higher judiciary, the above reforms can serve as the precursor to the other reforms to come. But all these reforms must keep in mind that the independence of higher judiciary is very essential for the effective discharge of the duties assigned to it. It should be free from the encroachments, pressures and interferences of the any kind and it should be allowed to do justice without fear or favour.

Source: The Hindu

Mains Question:

Q. It is high time to introduce reforms in the Higher Judiciary in India to make it more efficient and effective. Discuss (250 words).