ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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For Justice Concerns Us All

We need a public debate on guidelines for appointing senior members of the judiciary.

The appointment and transfer of judges to the country’s high courts and the Supreme Court have been a contentious issue. It has simmered for many years between the higher judiciary and the government and flares up at periodic intervals. In April this year, the union law minister announced that a Judicial Appointments Commission to give the executive a voice in the appointments was on the cards. To this the then Chief Justice of India (CJI) Altamas Kabir responded that the collegium system was working fine and there was no need to change it. Soon after taking office, the new CJI P Sathasivam also reiterated his faith in the collegium system.

The collegium, comprising four senior-most judges of the Supreme Court and the CJI, decides on transfers and appointments. It has been in existence for nearly 20 years now and was established in response to two significant rulings of the Supreme Court. Its critics point out that it is not sanctioned by the Constitution which states that the appointments should be made by the president after consulting whichever judges of the high courts and the Supreme Court (including the CJI) he/she deems fit to do so. However, in the Supreme Court Advocates-on-Record Association vs Union of India ruling in 1993, a nine-judge bench said that the CJI must have the “primal” role in these appointments. In 1998, this was further reinforced when in reply to a presidential reference on the meaning of “consultation”, the apex court framed guidelines that led to the collegium system. It was expected that this would shield the judiciary from political interference and guard its independence. The treatment of the judiciary by the government during the Emergency and in the years following had left no doubt about how disastrous the power to appoint and transfer judges could be in the hands of the executive.

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