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COVER STORY-FIGHT FOR RIGHT

The conflict has become a major source of tension between the judiciary and the government, and has raised important questions about the separation of powers,the role of the judiciary, and the nature of democratic governance in India.

The Collegium system, which was established by the Supreme Court of India in 1993, gives the country’s top judges the power to appoint and transfer judges to the Supreme Court and High Courts. The government has sought to reform the Collegium system, arguing that it lacks transparency and accountability, and that the judiciary has become too powerful. On the other hand, the judiciary has resisted these reforms, arguing that they would erode its independence and undermine the rule of law.

The government has also begun to air its grievances regarding the court’s invalidation of the National Judicial Appointments Commission (NJAC) in 2015. There are two triggers for the current round of fighting.One example is the government’s repeated public criticism of the Collegium system as “opaque.” The other involves a ping-pong match between the Collegium and the government over the names recommended and re-recommended for appointment to Constitutional courts. The statements of the union law minister and vice president have been responded to by the judges from the bench and at various fora.

Last year on October 17, Law Minister Kiren Rijiju fired a salvo at the Supreme Court Collegium, claiming that they were “preoccupied” with appointing judges when their primary job is to deliver justice. Mr. Rijiju’s remarks came near the end of the tenure of the then Chief Justice of India, N.V. Ramana, during which the Collegium recommended 363 names for High Court judgeships and 11 names for the Supreme Court.

Even  while  the  fight  is  going  on,  the Chandrachud has called for reforms to the Collegium system, including increased transparency    and    accountability,    and the establishment of clear criteria for the appointment and transfer of judges. He has also emphasized the importance of ensuring that the judiciary remains independent and impartial, and that the appointment process is free from political interference.

For far too long, the union government has trampled on the appointment process with little to no opposition from the Collegium or the rest of the judiciary. It “segregated” nominees for appointment, returned repeated nominees, or simply refused to make appointments until nominees resigned out of frustration. All of this was in violation of the Memorandum of Procedure established in response to the Third Judges’ case. The Collegium’s acquiescence was more concerning than the union government’s intransigence on the issue.

However, the Collegium system is far from the best or most efficient system for appointing judges in India. The Collegium system of judicial appointment, introduced by judicial sleight of hand in the Second Judges’ case to address specific concerns about executive interference in the appointment process, has outlived its usefulness and may be impeding true judicial reform. There are three obvious flaws: it is opaque, inefficient, and stifles diversity in the judiciary. There are currently no clear criteria communicated to the public regarding how the college evaluates the suitability of candidates for judgeship. When questions about the integrity and ability of individual judges are raised, this absence becomes even more pronounced.

At the same time, the Collegium system has failed to effectively fill High Court vacancies. As of December 1, 2022, 330 seats, or 30% of the High Courts’ sanctioned strength, remained vacant. This is an improvement over previous years, when the Collegium was rarely, if ever, able to ensure a High Court strength of more than 700 judges due to constant churn of judges and a lack of formalised processes. Given that the High Court is the judiciary’s most overburdened level (due to the high number of pending cases per judge), this is an unsatisfactory state of affairs that affects the administration of justice.

By emphasising seniority as an appointment criterion, the Collegium has become something of a clique, with largely male, upper-caste judges selecting male, upper-caste candidates for High Court and Supreme Court positions.Despite the fact that reservations have increased the representation of women, Dalits, Adivasis, and other excluded communities in the district judiciary, this has not yet been reflected in the High Courts and the Supreme Court, which are still largely dominated by upper-caste men. Judges appointed to the High Court from the district judiciary typically have shorter tenures than their bar counterparts. This means that they are rarely senior enough to serve on the High Court Collegium, which is in charge of selecting nominees to the court.

The citizen’s presence in the process, which distinguishes the Collegium, is also missing from the current debate. If the NJAC amendment had one redeeming feature, it was the inclusion of a “eminent person” in the NJAC. This is a good starting point for envisioning a new appointment system with more say for citizens.

However, In the midst of frequent confrontations between the  government and the judiciary, Union Law Minister Kiren Rijiju advocated for fraternal ties between the two pillars of democracy, saying that they are like brothers who should not fight each other.The outcome of this conflict will have far-reaching implications for the country’s democratic institutions and its commitment to the rule of law.

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