Context:

 The details of the Justice Yashwant varma case led to the controversy in judicial appointment in the judiciary system.

What is a Collegium System and How Did It Evolve?

About:

• It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament.

 What is the genesis of the collegium system in India?

• The collegium system has its genesis in a series of Supreme Court Judgements.
• S P Gupta Vs Union of India, 1981 (First Judge Case): Supreme Court held that consultation in the process of appointing judges does not require concurrence, and instead only involves the exchange of views
• Supreme Court Advocates-on-Record Association Vs Union of India, 1993 (Second Judge Case): The Supreme Court reversed its previous and altered the definition of consultation to mean concurrence.
• Third Judge Case,1998: Supreme court stated that the consultation process to be adopted by the CJI rNational Judicial Appointments Commission (NJAC) Act, 2014: It was brought to replace the existing collegium system for appointing judges.

However, a five-judge Constitution Bench declared it as unconstitutional and nullified it, stating that it posed a threat to the independence of the judiciary.

Why is the collegium system criticized?

• Lack of transparency: The collegium system is often criticized for its lack of transparency, as the reasons for the collegium’s decisions are not disclosed to the public.
• Judicial vacancies: It has struggled to keep up with the stagnant vacancies in the judiciary leading to the pendency of cases.
• Charges of nepotism: There have been allegations of nepotism and favouritism in the collegium system.
• Against the system of checks and balances: The collegium system violates the principle of checks and balances as it ensures the complete exclusion of the executive from the judicial appointment process, which leads to a lack of accountability.
• Lack of representation of women: The collegium system does not ensure adequate representation of women in the judiciary..
• Transfer of judges: Currently, the Supreme Court and the government do not disclose the reason for a transfer of judges.

What steps have been taken to improve the process of judicial appointments?

• 99th Constitutional Amendment Act, 2014: It provided for the National Judicial Commission (NJAC) to replace the collegium system for the appointment of judges.
• Memorandum of Procedure (MoP): The MoP is the list of rules and procedures for the appointment of judges to the Supreme Court and the high courts. It is a document framed by the government and the judiciary together.

Way Forward:

Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalise the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.It should ensure independence, reflect diversity, demonstrate professional competence and integrity.

Practice question:

The efficiency of the collegium system has been challenged time to time in terms of its independence and transparency of judicial appointments. Critically examine. (250 Words)