• The Government had cleared all the nine names (including 3 women) recommended by the Supreme Court collegium for position of judges in the SC. They have been sworn in simultaneously marking a first in SC's history.
• With this the working strength of the top court has risen to 33 judges, against the sanctioned strength of 34.
• The Supreme Court had earlier asked the government to explain the status of 55 judicial nominations to various High Courts made by the Collegiums six months to nearly a year ago.
• A total of 1,080 judges are sanctioned for the 25 High Courts.
• There are currently 419 vacancies with a current working strength of 661.

• Conflict with Executive: The appointment of the CJI in the 1970s led to some of the judges being superseded and attempts were subsequently made to transfer many of the High Court judges across the country.
• Judicial Independence: As a consequence, the independence of the judiciary has been questioned. This has resulted in a number of legal battles over time leading to creation of the collegium system.
• Evolution: It is a system of appointment and transfer of judges. It has evolved through SC judgements in first Judges case (1981), second judges case (1993), and third judges cases (1998).It is mentioned neither in the Act of Parliament nor in the Constitution.
• SC collegium:
  • It is headed by the Chief Justice of India.
  • It comprises four other senior-most judges of the court along with CJI.
• Constitutional Provisions:
  • Under art 124 (2) and 217, the President appoints judges of SC and HC.
  • The consultation with the chief justice is obligatory in the case of appointment of a judge other than the Chief Justice.
• SC Interpretation of consultation:
  • First Judges Case (1981):
    • A consultation doesn’t mean concurrence. It only means an exchange of views.
  • Second Judges Case(1993):
    • Consultation means concurrence. So, CJI's advice is binding on the President.
    • But CJI should consult his 2 senior-most judges for advice.
  • Third Judges Case (1998):
    • Consultation with CJI means consultation of plurality of judges.
    • CJI should consult with a collegium of four senior-most judges of the Supreme Court.
    • He should not send the recommendation to the government if two judges give an adverse opinion.
    • Recommendations without this process are not binding on the government.

• The National Judicial Appointments Commission Act of 2014 replaced the collegium system with the National Judicial Appointments Commission (NJAC).
• But, in 2015, the Supreme Court declared both the 99^th Constitutional Amendment as well as the NJAC Act as unconstitutional and void.

• Opaque System: The system lacks transparency about appointment norms. The public doesn’t know how and when a collegium meets, and how it makes its decisions. There are no prescribed norms for eligibility of appointment.
• Lack of accountability: This process doesn’t include the public representative and no information is shared.
• Possibility of arbitrary decisions: Lack of written rules and procedures might lead to arbitrary decisions of few individuals.
• The Contradiction of the principles of Natural Justice: The process of judges’ appointment by judges is against the principles of Natural Justice. It has resulted in nepotism and personal patronage in its functioning (Law Commission -2009). Several committees had recommended changes in the appointment process and composition of the appointment committee.

• Composition by 2^nd Administrative Reforms Commission:
  • Judicial representation by CJI
  • Executive: Vice-President (Chairperson), PM, Law Minister
  • Legislature: Speaker of Lok Sabha, Leaders of Opposition from both Houses of Parliament.
  • Other: No representative.
• Composition by Law Commission:
  • Representation by Judiciary: CJI (Chairman), three seniors most SC judges, the immediate predecessor of the CJI, three seniors most CJs of HCs.
  • Executive: Law Minister, Attorney General of India.
  • Other: One Law academic scholar.

• Influx of cases: As literacy has improved and the population has grown, citizen-friendly instruments like PILs have emerged; courts are experiencing an influx of cases.
• Vacancies:
  • As of 2017, there are 403 vacancies in High Courts out of our sanctioned strength of 1,079 judges.
  • 5676 vacancies in subordinate courts despite a sanctioned strength of 22,704 judges.
• Corruption: Sometimes, they are found to engage in collusive corruption, particularly at subordinate levels, in order to drag the case out.
• Procedural issues: Every case requires a lot of paperwork, which can sometimes cause unnecessary delays.
• Investigation time: Sometimes they are seen complacent about filing charge sheets and doing a rapid investigation, which causes a delay in delivering judgements on time.
• Adjournments: Adjournments are sought and often granted on flimsy grounds as a delay tactic to wear out the opposite party.

• Prescribe Norms: The Court and Legislature should decide norms for the appointment. Selection criteria should be defined and made public to scrutinize.
• The Predominance of judiciary: Judiciary is an independent institution. Political interference should be avoided by giving more weightage to CJI opinion in the appointment process.
• Bring transparency: The appointment process and its consultation should be made public to bring transparency.

Conclusion:

• Article 21 of the Indian Constitution states that the right to a fair and speedy trial must be protected in all circumstances. Urgent steps must be taken to streamline appointments in judiciary. Access to justice is also affected by other pending reforms like prison reforms, police reforms, etc. The government must also ensure that these reforms are implemented.

Source: The Hindu, The Indian Express