Government not clearing all collegium picks in one go disturbs seniority says Supreme Court

Government not clearing all collegium picks in one go disturbs seniority says Supreme Court

Subject: Polity

Section: Judiciary

Context: Supreme Court concern on Government selectively clearing Collegium picks

More about the news:

• The Supreme Court of India expressed concern over the selective clearance of names from the list recommended by the Collegium for the appointment and transfer of judges.
• The court highlighted the issues related to seniority when some names are notified while others are held back.
• Two petitions were filed, seeking contempt of court proceedings against the government for delaying the Collegium’s recommendations.
• The court noted that some candidates withdraw their names due to selective clearances, and stressed the need to address this issue.
• The matter is scheduled for a hearing on November 7.

What is the collegium system:

• The ruling in theThird Judges Case,gave legal backing to the current system of appointment of judges and created the collegium of the CJI and four senior-most judges.
• The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court Bench.
• The collegium system is not rooted in the Constitution or a specific law promulgated by Parliament.
• The SC collegium is headed by the incumbent CJI and comprises the four other senior most judges of the court at that time.

What the Constitution says:-

• Articles 124(2) and 217 of the Constitution deal with the appointment of judges to the Supreme Court and High Courts.
• The appointments are made by the President, who is required to hold “consultations” with “such of the judges of the Supreme Court and of the High Courts” as he may think is needed.
• For appointments other than the Chief Justice, “the Chief Justice of India shall always be consulted”.

Evolution of the system-

• The collegium system evolved out of a series of judgments of the Supreme Court that are called the “Judges Cases”.
• FIRST JUDGES CASE:
  • In SP Gupta vs Union of India, 1981, the Supreme Court held that the concept of primacy of the CJI was not really rooted in the Constitution.
  • The Constitution Bench also held that the term “consultation” used in Articles124 and 217 did not mean “concurrence” .
  • Therefore  though the President will consult these functionaries, his decision doesn’t have to concur with them.
  • This judgment tilted the balance of power in favour of the executive.
• SECOND JUDGES CASE:
  • In The Supreme Court Advocates-on-Record Association vs Union of India, 1993, a nine-judge Constitution Bench overturned the decision in SP Gupta, and devised a specific procedure called the ‘CollegiumSystem’. 
  • The verdict in the case accorded primacy to the CJI in appointment and transfers, and ruled that the term “consultation” would not diminish the primary role of the CJI.
  • The verdict said that the recommendation should be made by the CJI in consultation with his two senior most colleagues.
  • It added that although the executive could ask the collegium to reconsider the matter, if the collegium reiterated the recommendation, the executive was bound to make the appointment. 
• THIRD JUDGES CASE:
  • In 1998, then President K R Narayanan issued a Presidential Reference to the Supreme Court under Article 143 of the Constitution over the meaning of the term “consultation”.
  • The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.
  • In response, the SC laid down nine guidelines which has come to be the existing form of the collegium.
  • The SC laid down that the recommendation should be made by the CJI and his four seniormost colleagues instead of two. 
  • It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.