Indian Judiciary and Appointment Of Judges To Supreme Court And High Court

Indian judiciary is integrated, independent and pyramidal in structure. The pyramid is tapering at the top with the Supreme Court at the apex. Integrated meaning that the various subordinate courts and district courts, metropolitan courts, tribunals, and high courts are all connected and can’t deny to recognize the judgements/authority of Supreme Court. Independence of judiciary implies that in matters such as appointment of judges, there is non-interference of executive. This adheres rightfully to the principle of separation of executive and judiciary as mentioned in Article 50 of the constitution of India.

Pyramidal structure is a skeletal schema to understand the importance to the Supreme Court. This vindicates the unitary feature of Indian polity. Unlike American polity which has federal courts for each state apart from the USA Supreme Court, India has a single independent supreme court. This reinforces the unitary nature of Indian polity because of a different history and political developments that require a central binding force.

The courts function with the help of judges, advocates and staff. Judges of Supreme Court are appointed by president after consulting the collegium. The collegium is a group of 4 senior Supreme Court judges and the CJI. The respective High Court collegium consists of chief justice of respective high court and other judges.

The collegium system has been a centre of attention since past few years. The National Judicial Appointment Commission was set to be established by 99th constitutional amendment act. But was struck down by SC as it violates independence of judiciary and the principle of separation of power. Currently, SC and HC judges are appointed by the president as mentioned below, under article 124 for sc and under article 217 for HC judges’ appointment.

Article 124(2) states that ……….

‘’Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years’’

Due to lacunae in fair appointments like uncle judge syndrome, judges appointing judges, corruption among others and the matter of appointment has been a matter of concern. The closed door affair of the process has eroded over the years. And like any other ageing institution shouldn’t shy away from reforms for its own betterment.

The collegium system isn’t mentioned in the constitution but has evolved since the landmark three judges’ cases. The second judges case of 1993 reaffirmed that ‘consultation’ would imply ‘concurrence’ with the CJI in case of recommendation of named to the president. There are supposed to be checks by institutions like IB to do background check. But the names if renamed by collegium can’t be challenged.

The high vacancy in sc and high courts is enormous. With patna, Calcutta, rajasthan high courts having more than 50 percent vacancies. There are more than 4 crore cases pending in the judiciary. The heavy burden needs to be divided amongst well deserving talented judges.

The law commission of India report in 2008 and 2009 has suggested that parliament must devise a mechanism to ensure primacy of the CJI and involve executive and legislature too in the process of appointment. Furthermore, we mustn’t forget the mandate of section 4 of the RTI act to engender public confidence in the law and justice delivery.

The judiciary has the responsibility of ensuring trust of Indians as it is the real guardian of fundamental rights as guaranteed in the constitution. And the Supreme Court being the custodian of the constitution should take utmost care in handling the fragile issue of faith, accountability and transparency in one of the three pillars of the STATE.

Aishwarya Says:

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