Court System or Legal System
The process of appointing judges for the Supreme Court and High Courts in India is currently under scrutiny, with a proposed commission aiming to bring about change. This commission, consisting of twelve members, follows a system of proportional representation, similar to the selection procedure for judges of the Federal Constitutional Court in Germany.
The commission, if approved, would replace the Collegium system, which has been the traditional method for appointing judges. This system involves a consultation of a plurality of judges, including the Chief Justice, and ensures seniority in the appointment process, providing an opportunity for all. However, it can lead to short tenures, affect leadership and innovation, and discourage merit.
The Collegium system has been the subject of debate, with concerns raised about its impact on the independence of the judiciary. The Supreme Court declared the National Judicial Appointments Commission (NJAC), proposed to replace the Collegium system, unconstitutional due to fears that it shifts the balance of power towards the executive, threatens the independence of the Judiciary, and has the Law Minister as a part of the commission.
The independence of the judiciary is considered non-negotiable in India, based on the perceived threat to its independence. An independent commission for the appointment process is recommended, as suggested by the 2 ARC, Law Commission, and NCRWC, to strike a balance between judicial independence and judicial accountability.
The composition of this proposed commission includes the Judiciary (CJI and Chief Justice of the relevant High Court), Executive (Vice-President, Prime Minister, Law Minister, and Chief Minister for High Court judges), Legislature (Speaker of Lok Sabha, Leaders of Opposition from both Houses of Parliament), and no representative from other entities.
Interestingly, other countries have different methods for judicial appointments. In the USA, appointments to the Supreme Court are made by the President, with Supreme Court Justices being nominated by the President and confirmed by the United States Senate. In Canada, appointments are made by the Governor in Council, with a selection panel comprising five MPs reviewing the list of nominees and submitting three names to the Prime Minister. In the UK, the Supreme Court judges are appointed by a five-person selection commission.
The Constitution of India provides security of tenure, fixed service conditions, and the power to punish for contempt to the judiciary. It also bars Parliamentary interference under Article-121 of the Constitution. The independence of the judiciary is crucial for upholding the rule of law, protecting fundamental rights, checks and balances, social transformation, fostering democratic values, preserving democracy, and ensuring constitutional morality.
Despite the Supreme Court's declaration of the NJAC as unconstitutional, it is still considered a better practice than the Collegium system by some. The way forward proposes a careful consideration of these different systems, with the aim of finding a solution that ensures both the independence of the judiciary and its accountability to the people of India.
