Judicial Appointments – A Process To Be Expediated -upsc mains topic

Judicial Appointments – A Process To Be Expediated

Background & Facts –

1. Indecisiveness on adopting a common countrywide judicial appointment exam for the subordinate judiciary has led to vacancies in lower courts, including district courts, touching an all-time high of almost 6000.

2. As on December 1, 5,984 judges’ posts were vacant in the subordinate judiciary against the sanctioned strength of 22,677 across the country. This figure doesn’t include the judges of the Supreme Court and the High Courts. Currently, there are only 16,693 judges in the lower courts and hence the cases pending before the lower courts are around 2.61 crores.

3. All India vacancies of the subordinate courts against the sanctioned strengths is around 26% in the lower courts whereas in the High Courts, it is very huge i.e. 40%. Northeast states have the highest percentage of the vacant positions of the judges.

Therefore, it is necessary to address the issue at the earliest to uphold the constitutional dictates and ensure expedite the justice delivery process. The current Chief Justice of India (CJI) is prudently streamlining the issue.

Opinions And Statements –

1. Justice Kurean Joseph (Retd.) – ( Former Justice of the Supreme Court of India) –

• He stated that there is a cordial dialog between the current CJI and the Prime Minister (PM) of India to address the issue of the judicial vacancies at the earliest. Irrespective of their personal opinions and the litigations pending in the courtrooms where the government is the prime litigant, he said, that both the authorities are discussing the issue in their official capacities by maintaining their constitutional jurisdiction.
• He further stated that constitution’s existence will uphold the relevance of the Judiciary and judiciary will protect the existence of the constitution. Prompt, disciplined and ordered judicial administration may resolve the issue at the earliest, is what we can infer from his comments.

2. Ravi Shankar Prasad (Law Minister of India) – 

• Prasad asserted that the executive was not committing a “cardinal sin” by seeking reconsideration of some proposals made by the Supreme Court collegium on the appointment of judges. This was seemingly in response to the criticism being meted out to the Centre for rejecting the collegium’s recommendation to elevate Chief Justice of Uttarakhand High Court, Justice K.M. Joseph to the Supreme Court. Defending the decision, he further said, “Even in the collegium system (of appointing judges), the right of the government to seek reconsideration and provide inputs is recognized”
• He proposed a national level entrance test for “talent infusion” into the lower judiciary. He clarified that he was not advocating for a national level judicial service on the lines of the all-India services like the Indian Administrative Service and Indian Police Service, but for an exam that would allow lawyers graduating from National Law Universities every year to join the judicial service.

3. Adv Datar ( Senior Advocate, Supreme Court of India)

• A note by him, prepared on the instructions of the former CJI Justice Kheha, had drawn parallels with the Central Civil services, submitting that it attracts highly capable individuals every year, and that an important reason for this could be the selection process itself. The primary reason cited by him for setting up a Central Selection Mechanism was therefore to provide a regular pool of meritorious candidates to recruitment and selection bodies for State Judicial Services across India.
• He had proposed a selection mechanism as well, calling it District Judges Recruitment Examination (DJURE), and had clarified that it would neither recruit, nor appoint the Judges. He submitted that it will merely present a pool of candidates from whom Judges can be recruited, after an interview with the selection authority.

Challenges –

The Framers of the Indian Constitution, while drafting it, understood the necessity to have an independent judicial system. Dr Ambedkar in the Constituent Assembly Debates stated that “our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured”.

1. System of Judicial Appointments for the Higher Judiciary –

• Collegium system is still practised in the appointment of the judges of the higher judiciary. Irrespective of what is the constitutional mandate, the collegium system stresses to have primacy of the judiciary in judicial appointments. Though the process has been little smooth since last 2 decades, still non-involvement of the executive to a greater extent has always remained a debatable issue. Appointments to the higher judiciary, governed by Articles 124 and 217 of the Constitution of India, for the Supreme Court and the High Courts respectively, are in hands of the executive, or so it appears from a literal reading of the provisions; but collegium system has challenged this mandate and the issue still remains lingering.

• The government, through Parliament, had enacted the National Judicial Appointments Commission (NJAC) Act through which a 6 committee was to be established consisting of 3 members of the judiciary, law minister and 2 prominent members. The definition of the prominent members was ambiguous and hence the doubts were raise over dominance of the executive in the judicial appointments and hence, also on the other constitutional parameters, this act was declared unconstitutional. Thus, the collegium system is still continued.

2. Influence of the executive in the appointments and in the judicial administration –

• There have been recent unprecedented incidence of the press conference conducted by the senior most judges of the Supreme Court of India, except the CJI. The major issue involved into such an act of the judges was regarding the interference of the executive in the judicial administration. The allegations were vocal regarding the influence of the executive in allocation of the cases, constitution of the benches etc.

Therefore, involvement of the executive in the appointments might raise the same allegations in the years to come.

3. Arrangements for the National Level Exam for the judicial appointments –

• There is no common policy/agreement or institution which is assigned to take up this huge task of appointing the judges in the subordinate courts. Standardisation of the process of selection, prudent scrutiny and apt selection of the talented and worth candidates for such coveted positions will be tough task that is to be targeted beforehand.

4. Transparency and Accountability –

• The collegium system was majorly criticised for the non-transparency of the process. The names recommended for the higher judiciary and the criteria referred are never disclosed. Being the custodian of the constitution, the capacity and integrity of the judges are to be ensured through a transparent appointment process.

Lakshya Ahead (Way Forward/Solution) –

1. In an order of March 28, the Supreme Court bench of Justices Adarsh Goel and UU Lalit acknowledged the gross limitations of the existing system of selection of judges. They called for setting up a panel of experts to shortlist candidates to the higher judiciary, and also to subsequently evaluate their performance.This is, perhaps, the closest a Supreme Court ruling has come to what Government of India has been suggesting on forming a committee to do a shortlisting of judicial talent for selecting candidates to the higher judiciary. “Identification of candidates, scrutiny, evaluation and post-appointment performance measurements and conduct are time-consuming processes and at least some independent full-time experts are required, if timely and best appointments are to be ensured and requisite in-house oversight is to be a reality.

2. Independence of Judiciary – It involves the basic structure of the constitution. Article 50 of the constitution talks about the principle of Independence of judiciary and states that the executive and judiciary must be independent of each other. Whereas, while discussing the involvement of the executive in the appointments of the higher judiciary, this aspect must be given significant importance. Broadly speaking, when constitution itself mandates that the judges of the higher judiciary are to be appointed by the President of India in consultation with the CJI, it is an obvious inference that the constitution did wish to maintain primacy of the executive over judicial appointments. So, a system, more transparent than the collegium system must be devised in which there is an integration of the judicial authorities and executive opinions. Arriving at such a system, is the only solution as far as judicial appointments are concerned. Recent productive talks between the CJI and the PM are depicting a positive picture in this scope.

3. In case of appointing a national level authority to appoint the judges of the subordinate courts, it is important to have constructive opinions from the Supreme Court of India, central executive , law commission and from the state governments. A transparent, accountable, just and efficient institutional framework may smoothen the process of filling the vacancies in the lower judiciary where addressing the universal application of such system and standards across the states is to be thought well upon.

4. More than the constitutional qualifications, mentioned for the judges of the higher judiciary, it is important to draft and document certain standards and qualifications required by a candidate to be appointed as a judge in the higher judiciary. This will attract the cream legal talent in the country towards the judiciary and also the committee shortlisting the candidates for these positions will have a guideline to be followed and evaluate the candidates accordingly. Thus, standardisation of the merits and process of appointment can be a healthy solution towards expedite and effective appointment procedure in the judiciary.

Q. Increasing number of vacancies in the higher judiciary and pending litigations, proves the statement – “Justice Delayed is Justice Denied”. Comment. (250 words)