Context: The Supreme Court in March said the Centre should respond to its collegium recommendations within a reasonable time frame and favored the appointment of ad-hoc judges in the high courts to reduce the pendency of cases in the judiciary. A bench of Chief Justice Bobde and Justices Sanjay Kishan Kaul and Surya Kant took note of the delay on part of the central government in acting on the collegium's recommendations. It said that at each stage there is a certain thought process and therefore "there should be a reasonable time frame within which the Union Ministry of Law and Justice should act. After collegium recommends they need to reply in a specific time frame". The bench said there are certain recommendations which are pending before the government for the past six months. In this edition of Big Picture, we will analyze the collegium system of appointment of judges.
Key Points
‘Constitution permits appointment of ad-hoc judges’

• The SC had asked all 25 high courts to respond to a public interest litigation filed by Lucknow-based non-profit organisation, Lok Prahari, asking for the appointment of retired judges as ad-hoc judges under Article 128 of the Constitution.
• Article 128 talks about “attendance of a retired judge” as the judge of the Supreme Court.
• It states that the Chief Justice of India at any time, with the previous consent of the President, may request any person who has held the office of a judge of the Supreme Court or the high court to sit and act as a judge of the Supreme Court.
• Similarly, under Article 224A, even retired high court judges can be appointed as ad-hoc judges to HCs.
• The CJI noted that the provision under Article 224A is not being used.
• “This is not our suggestion or the petitioner’s. It is there in the Constitution. We will lay down guidelines stating if pendency goes beyond a certain limit for say more than 8 or 10 years, then the Chief Justice will automatically recommend the appointment of an ad hoc judge. After Collegium approves, they can sit and it (term of ad hoc judges) can be extended. Other factors like accommodation have to be looked into,” he said.

Supreme Court Suggestions

• Guidelines for Appointment of an Ad-hoc Judge: The court orally outlined prospective guidelines for the appointment and functioning of an ad-hoc judge.
• Pendency Beyond a Certain Limit: If in a particular jurisdiction, the pendency goes beyond a certain limit, say eight or 10 years, the Chief Justice may appoint a certain [retired] judge with expertise in those fields of laws as an ad hoc judge.
• The term of such a judge could be extendable.
• Position: The appointment of ad-hoc judges would not be a threat to the services of other judges as the Ad-hoc judges will be treated as the junior most.
• Selection: The retired judges would be chosen on the basis of their expertise in a particular field of dispute and allowed to retire once the pendency in that zone of law was over.

Arguments for Appointing Retired Judges

• The retired judges who had handled certain disputes and fields of law for over 15 years could deal with them faster if brought back into harness as ad-hoc judges.

Related Constitutional Provisions

• The appointment of retired judges was provided for in the Constitution under Article 224A (appointment of retired judges at sittings of High Courts).
• Under the Article, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of judge of that court or of any other High Court to sit and act as a judge of the High Court for that State.

About Collegium System

• It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.

Evolution of the System
First Judges Case (1981)

• It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
• The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

Second Judges Case (1993)

• SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
• It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.

Third Judges Case (1998)

• SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
• The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
• A HC collegium is led by its Chief Justice and four other senior most judges of that court.
• Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
• The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
• Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
• It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Procedure for Various Judicial Appointments
For CJI

• The President of India appoints the CJI and the other SC judges.
• As far as the CJI is concerned, the outgoing CJI recommends his successor.
• In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.

For SC Judges

• For other judges of the SC, the proposal is initiated by the CJI.
• The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
• The consultees must record their opinions in writing and it should form part of the file.
• The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

For Chief Justice of High Courts

• The Chief Justice of High Court is appointed as per the policy of having Chief Justices from outside the respective States.
• The Collegium takes the call on the elevation.
• High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
• The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
• The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Criticism of the Collegium System

• Opaqueness and a lack of transparency.
• Scope for nepotism.
• Embroilment in public controversies.
• Overlooks several talented junior judges and advocates.

Attempts to reform the Appointment System

• The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions

• Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
• Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Road Ahead

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
• Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.