Editorial

Source- The Hindu

Introduction

Recently, Justice Siddharth Mridul has been appointed as the Chief Justice of Manipur High Court.

• Justice Siddharth Mridul was appointed as a Judge of the High Court of Delhi on 13^th March 2008 and has been functioning as the seniormost puisne Judge in his parent High Court.

What is the Background of this Appointment?

• On 5^th July 2023, the top court collegium headed by Chief Justice of India D Y Chandrachud recommended the appointment of Delhi High Court Justice Siddharth Mridul as the chief justice of the Manipur High Court.
• On 9^th October 2023, the Supreme Court bench had noted that the appointment of the chief justice of the Manipur High Court had finally received the Centre's attention and it would be notified shortly.
• On 16^th October 2023, more than three months after Justice Siddharth Mridul’s name was recommended by the Supreme Court Collegium, he was appointed as the chief justice of the Manipur High Court.
• The delay in the appointment of Justice Mridul was apparently due to the state governments taking time to give its view on the proposal.

What is the Conflict between the Government and the Collegium System Over the Appointment Process?

• The conflict between the Government and the Collegium System over the appointment process is quite pronounced and often reaches a flash point.
• The Supreme Court has been vocal about the Government’s selective treatment of its recommendations.
• There have been instances of the government returning names that have been reiterated more than once.
• One of the main reasons for this conflict is the Government supporting the National Judicial Appointment Commission (NJAC) and the judiciary supporting the collegium system.
• A bench led by Justice Sanjay Kishan Kaul shared its concern with the Attorney General for India R Venkataramani that seventy recommendations made by the High Courts' collegium from November 11, 2022, are pending with the Union Government.

What are the Steps Taken by Supreme Court to Prevent the Delay in Appointments?

• The SC in the case PLR Projects Ltd vs Mahanadi Coalfields Pvt Ltd. (2019), has laid-down the following timeline for clearing collegium proposals:
  • The Intelligence Bureau (IB) should submit its report/inputs within 4 to 6 weeks from the date of recommendation of the High Court Collegium, to the Central Government.
  • It would be desirable that the Central Government forward the file(s)/recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/input from the IB
  • It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly if the Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded.
  • If the Supreme Court Collegium after consideration of the aforesaid inputs still reiterates the recommendation(s) unanimously then such appointment should be processed and appointment should be made within 3 to 4 weeks.

What are the Legal Provisions in Relation to Appointments?

• In India, until 1993, the appointment of judges was done by the President in consultation with the Chief Justice and two other senior-most judges of the Supreme Court.
• Since 1993, it is the Collegium system evolved by the Supreme Court that decides on appointments and transfers of judges in the higher judiciary, though the nominal appointing authority is the President of India.

Collegium System

• It is a framework for appointment of judges of the Supreme Court and High Courts.
• The Supreme Court Collegium consists of the Chief Justice of India and four other senior-most judges.
• The High Court Collegium consists of incumbent Chief Justice and two other senior most judges of that court.

Evolution of the Collegium System

• First Judges Case (1981):
  • The matter of S. P. Gupta v. Union of India (1981) is known as the first judges case.
  • The issue was upon the appointment of judges wherein the court held that consultation in Article 124 of the Constitution of India, 1950 (COI) does not mean concurrence.
• Second Judges Case (1993):
  • The matter of Advocates-on-Record Association v. Union of India (1993) is known as the second judges case.
  • The court held that the role of Chief Justice of India is primary in appointment of judges.
  • The executive cannot have a higher hand in the judicial space.
• Third Judges Case (1998):
  • It was a case of Presidential reference where the court defined the term ‘consultation’ as consultation with the plurality of judges.
  • The Chief Justice of India must consult with the four senior-most judges of the collegium.
• Fourth Judges Case (2015):
  • In the matter of Supreme Court Advocates-on-Record Association v. Union of India, the court nullified the constitutionality of the National Judicial Appointment Commission Act, 2014.
    • In August 2014, Parliament passed the NJAC Act, 2014 for making appointments in the higher judiciary. This Act sought to change the Collegium system by formulating the NJAC, proposed as a committee comprising of Chief Justice of India, two other senior judges of the Supreme Court, the Union Minister of Law and Justice and two eminent persons to be appointed jointly by the Chief Justice of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha.
  • The court re-established the collegium system for the appointment of the judges of Supreme Court and High Court.

What are the Constitutional Provisions in Relation to the Appointment of Judges?

• Article 124(2) of the COI deals with the appointment of Supreme Court judges. It states that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in article 124A and shall hold office until he attains the age of sixty-five years. Provided that—
  • (a) a Judge may, by writing under his hand addressed to the President, resign his office;
  • (b) a Judge may be removed from his office in the manner provided in clause (4) of this Article.
• Article 126 of the COI deals with the appointment of the Chief Justice of India. It states that when the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.
• Article 217 of the COI deals with the appointment of High Court judges. It states that-
  • (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in article 124A, and the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years.
  • Provided that—
  • (a) a Judge may, by writing under his hand addressed to the President, resign his office.
  • (b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court.
  • (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.
  • (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—
  • (a) has for at least ten years held a judicial office in the territory of India; or
  • (b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.
• Article 223 of the COI deals with the appointment of chief Justice of the High Court. It states that when the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.

Conclusion

The NJAC was criticized for politicizing the judiciary and imposing an attack upon its independence. Whereas the government criticizes the collegium system for its vagueness, room for favoritism, and distracting judges from doing their actual job as the appointment is an administrative process and encroaches the precious time of the judiciary.

It is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.