The chief justice of India's tenure is about to end and the selection of a new justice through collegium process is started, again this issue on limelight about the selection procedure for the appointment and transfer of the judges through the collegium method. The process of the collegium has always been a matter of dispute between the executive and the judiciary.
What is a collegium system?
This system is not enshrined in the constitution nor it mentioned in any laws, devloped by the supreme court through the decisions. It is a system for "appointment of judges by the judges". Transfer of judges are done by the judges, and all this, is headed by the chief justice of India. The collegium system constitutes CJI+ 4 other senior judges.
History of collegium.
Neither mention in the constitution nor in any laws, evolved after a long dispute between the executive and the judiciary. The strain was at the climax in the decade of 70s of the 20th century. A court packing, collective transfer of the judges of the High courts took place. The 1973 CJI appointment dispute led a series of disputes in the coming years.
To amend in the main structure of the constitution, a 13 members panel was constituted, and M.N.Roy was one among them. The court verdict its decision by 7:6. M.N.Roy was appointed as the chief justice of India although he was not the senior most among all. It was the first time that had been seen when executive intervening in the judiciary.
In the First Judge Case 1981, S.P. Gupta case, an advisory process was adopted for the appointment of the judges. The advices to the government is not compulsory to the executive. The role of a CJI was limited only by an advisory.
Second judge Case 1993. A panel of nine judges dismissed the decisions of the S.P Gupta case. A collegium system was evolved for the appointment and transfer of the judges of the High courts. The protection of the independency and the unity of the judiciary is the duty of CJI, the decision came. The role of the CJI in the appointment is not reduced. CJI with 2 it's seniors give recommendation for the appointment to the executive and is assent by the executive. To assent the recommendation is compulsory.
Third judge Case 1988.
The president KR Narayanan invoked the article 143, sought suggestions from the CJI on the meaning of the term advise. It is the duty of a president to seek advise from the CJI on any issues and the CJI is abided to give advice to the president, however, the president can accept or reject the advice made by the CJI. A question raised, will only CJI come accordingly or also required others. Supreme court issued some guidelines, in which a collegium will have CJI+ 4 senior judges. The recommendation can't be sent if any opinion two judges varies. The collegium was made more democratic and more diverse.
Importance of collegium system
To stop the intervention of executive in the judiciary. And the system makes judiciary distance from the politics. It can works as a dedicated form and efficiently. It follows the principles of decentralisation of powers. No branch of the government can interfere with each other. High courts judges have no tension about their transfer. No decision against the government in any pressure. We know very well that the executives have no specific knowledge about the judiciary so it would be better to let the work of the appointment of the judges of the supreme court and the High courts, to the collegium system.
Why this system is criticised?
An accusation of very chances of nepotism, has been associated with it since it adoption. No clear guidelines for the appointment of the candidates. There is an already burden on the piling up of the cases about 4.70 crore. Where 70 thousands cases is pending in the supreme court. So if this works is assigned to the supreme court then may rise the burden of the works on the supreme court.
Somehow it breaches the system of check and balance. Non transparency comes.
Comments
Post a Comment
thank you