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Independence Of Judiciary: The Collegium In Question?

As we know that any democratic country, the independent judiciary has a vital role in administering justice and ensuring the rule of law and realization of human rights in society but to achieve this purpose we need an independent judicial system. An independent judicial system means a system that is not controlled by the executive, legislative, or any private entities.

For a healthy judicial system, the independence of the judiciary plays a crucial role in protecting the sovereignty of the constitution as well as judiciary. The maker of our constitution envisaged absolute judicial independence from the legislative and the executive. one of the eminent personalities of the law Mr. Prashant Bhushan said that independence of the judiciary means independence from the executive but not independence from accountability.

In the case of Keshvananda Bharti case, the supreme court propounds a doctrine of basic structure and it says that the constitution of a sovereign state has certain characteristics that can't be erased by its legislature and judicial independence is part of the basic structure so it can't be amended by parliament. one of the most important factors for there has been always conflicting between executive and judiciary for the appointment of judges of the supreme court and high court. as stated in our constitution article 124 the executive has the power to appoint judges in the higher judiciary after consulting such judges as it may be required.

But in 1990 the apex court of the country through its infamous three judges cases made the balance of power between executive, legislature, and judiciary and create a system called the collegium system. the collegium system is a very unique and unheard-of phenomenon in the global legal arena and it was created by apex court through its infamous three judges cases law.

First judges case: in SP Gupta vs Union of India 1981 the supreme court said that the concept of superiority of the CJI was not found in the constitution of India so any proposal for an appointment in the high court can reject by any of the constitutional functionaries mentioned in the article 217 of the Indian constitution. the constitution bench also said that the word 'consultation' which is mentioned in articles 124 and 217 was not bound, although the president will consult these functionaries but is not bound to do so

Second judges case: In supreme court advocate - on - record advocates association vs union of India 1993 the supreme court overturned the judgement of SP Gupta vs Union of India and devised a specific procedure called the "collegium system" the court said that the recommendation should be given by CJI with the consultation of his two most seniors colleagues and executive has also had the power to send collegium their recommendation for reconsider but if collegium reiterates the recommendation then the executive will be bound to make the appointment.

Third judges case: in 1998 president KR Narayan issue a presidential reference to the supreme court over the meaning of the term 'consultation' given in article 143 of the constitution of India and ask the question of whether "consultation" required consultation with several judges in forming CJI opinion or weather sole opinion of CJI could by itself constitute a "consultation".

In response, the supreme court laid down nine guidelines and also form four most senior judges instead of two in collegium and also said that if two judges were decent with the recommendation then CJI should not send the recommendation to the government. Ever since the collegium has been recommending appointing and transferring judges in the high and supreme courts.

Representation under the collegium system:

Perpetuating privilege or adequate representation
Currently, the collegium system is responsible for appointing judges in the high court and the supreme court, but many legal scholars said that the collegium system has many perpetuating privileges. some perpetuating privileges are mentioned below:
  1. The collegium is criticized for its unconstitutional behaviors it nowhere mention in the constitution and has been evolved by the judiciary itself for retaining the power to select itself.
  2. It has no proper written manual for functioning and also no official procedure for selection so there is the issue of transparency
  3. The collegium system has not been able to prevent the vacancies of judges and cases in the court so there is an efficient issue.
  4. The collegium system has also the problem of nepotism, sons and nephew of judges or senior lawyers tends to be popular choice for judicial roles

The collegium system, the "lesser evil"

The collegium system is a very complicated system we can't clearly say that it is good or evil instead of this it has some pros and cons

  1. the collegium system made the judiciary independent from politics and also kept away from the influence of executive and legislative so they can work without any fear or favor.
  2. the executive doesn't specialize or know about to requirements of the judges as compared to CJI
  1. The system doesn't provide any proper guidelines to appoint judges in the supreme court and the high court so there may create some sort of nepotism and favouritism.
  2. The system leads to non - transparency in the judicial system, which is very harmful to the regulation of the law
  3. In collegium system the appointment process is very slow so that create burden on the judiciary so which leads to lots of pending cases

Executive and judiciary: Democratic Institution in conflict

The appointment tension between the judiciary and executive is very historical the executive wants to control the power of the appointment process and he feels that the collegium system is a severe compromise of parliamentary sovereignty and disregards the mandate of the people that's why he tries to sack the collegium system.IN 2014.

The executive introduce an act NAJC (NATIONAL JUDICIAL APPOINTMENT COMMISSION) in this act there were different criteria for the appointment of judges, and a commission will be formed. the commission was to comprise the chief justice of India as a chairperson the other member included two senior-most judges of the supreme court the law and justice minister and two eminent people to the selected by the committee comprising of the chief justice, prime minister and leader of the opposition.

The NAJC was seen as another attempt of the executive to hold the upper hand in judicial appointment but in 2015 the constitutional bench of the supreme court declared it unconstitutional because it violate the basic structure of the constitution. So we can trace from the past event that the executive and judiciary have some institutional conflict for power.

As we know that for the appointment of judges, the executive and judiciary remain in conflict so there is some suggestion that may reduce the conflict between the executive and judiciary. Some suggestions ate given below:
  1. In under the Atal Bihari Vajpayee government one committee is formed named MN Venkatachalam Which gives some suggestions to reduce the conflict. NJAC is one of the suggestions of that committee.
  2. Government of India should make written procedures and specific criteria of age, and seniority to make some transparency of judges in the high court and supreme court
  3. As we know that the US is the world's oldest democracy, if the government of India want to take some suggestion, then they can take help from the process of appointing the judges of the US, UK and France.
With the detailed analysis of the statute and article regarding the collegium system, the executive played a key role in the appointment of the judges of the supreme court and the high court before 1990 but first judge case and second judge case make the base for the changing of power and third judge case properly change the power of appointing of a judge from the executive and judiciary.

but as of now, some loopholes are found in the collegium system so for transparency and the independence of the judiciary we have to address those loopholes so the faith of the people in the judiciary doesn't shake.

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