Do you think reforming the existing collegium system is the best way forward to select and appoint judges to ensure independence of judiciary? Critically discuss.
Judiciary central to democracy
- Protector and guardian: Judiciary is the protector of the constitution and guardian of fundamental rights of citizens.
- It is the first line of defence for aggrieved citizens. Citizens can appeal to the judiciary in case of violation of their fundamental rights and any illegal actions against them.
- Judicial Review: Judiciary ensures that legislations passed by the Parliament do not infringe upon the basic structure of the constitution and against its overall principles.
- Writs: Judiciary ensures that the executive and public offices carry out their duties to the citizens as envisaged.
- Check and Balances: Judiciary keeps a check on the arbitrary exercise of power by executive and legislature and thus an independent judiciary is critical to stability of democracy in India.
The Collegium system has been criticized because:
- Collegium is an extra constitutional authority. Ambedkar held that a fine balance is to be maintained between the two organs of the government. Appointment of an judges should be an integrated, participatory process, which is not the case with collegium system
- The collegium system has been held as non transparent and has been called an island of insularity
- Posts in higher judiciary remained vacant. 30% of HC judges seat was empty
- Deep divisions were observed within the collegiums system
- The system of extending favours because of lack of transparency and accountability led to decline in the quality of justice dispensation. It promoted dynasties in judiciary, often called “Uncle Judges” syndrome.
Problems with NJAC:
- The judiciary was underrepresented in NJAC with only 3 out of 6 members.
- Presence of Law Minister in the body raised the question of fairness as UoI is th largest litigant before the judiciary
- Politicization of judiciary as had happened prior and post emergency was a valid threat
- The court while quashing 99th CAA as unconstitutional held that
- Judiciary can not be caught in a “web of indebtedness” towards the government
- Independence of judiciary is equivalent to judicial primacy and process of appointment of judges can not be shared with political executive
- Organic development of civil society in India has not yet happened. Thus the burden falls on judiciary to safeguard the rights of the citizen and for this judiciary needs to be kept completely insulated from the other organs if government
- Bench held that the tendency of executive has been to indulge in favoritism. Preserving the primacy of judiciary is a safe way of protecting it from turning into a case of spoils system
- Bench admitted that all is not well with collegium and highlighted that the system requires a glasnost and a perstroika.
Thus a Memorandum of Procedure needs to be developed which is transparent, mentions the eligibility criteria, establishes secretariat, provides for a complaint redressal mechanism. We can also imbibe the best practices from other countries such as UK Judicial Appointment Commission which provides for detailed procedure, involvement of people, provides for an exam and interview system for judicial appointments.