Here’s About The Indian Judicial System
Introduction
Indian Judicial System is divided into three levels: the Supreme Court, the High Court, and the Subordinate Courts. Appointment of Supreme Court Judges is governed by the Collegium System. A Constitution that ensures the separation of powers between the federal government and the states as well as an independent judicial system makes the judiciary's role in the government even more crucial. Rather than a Parliamentary Act or a constitutional provision, Supreme Court decisions have shaped how justices are appointed and removed from office.
Indian Supreme Court
• One of the most powerful courts in the world is the Indian Supreme Court. In cases of conflict between the center and the states or between the states themselves, it serves as the last arbiter.
• This single court system was adopted from the 1935 Government of India Act.
• Part 4 of the Constitution deals with the SC's organization, independence, jurisdiction, powers, procedures, and other topics in Articles 124 to 147.
• Additionally, it is the final and highest interpreter of national general law. In both civil and criminal disputes, it is the highest court of appeals.
• The Supreme Court has such broad authority and responsibilities that justices who serve on the Supreme Court have significant responsibilities. As a result, in order for the Supreme Court to operate effectively, nominees must go through a reasonable, fair, and impartial process that is free from bias.
Appointment of Supreme Court Judges
• The President appoints the justices of the Supreme Court.
• According to Article 124 (2), the president names the chief justice after conferring with the justices of the high courts and the Supreme Court as necessary.
• The chief justice and as many extra Supreme Court and high court judges as he deems necessary are consulted before the president names the other judges.
• The Chief Justice's advice to the President is not legally binding, the Supreme Court declared. The Court did, however, find that the consultation had to be worthwhile.
• Only the CJI has the power to start the selection process for Supreme Court justices.
• If there is a difference of opinion between the CJI and the President, the CJI's opinion shall prevail.
Chief Justice of India
• The senior Supreme Court judge who is best suited to fill the position would appoint the Chief Justice of India.
• When it is time to choose the new Chief Justice of India, the Union Minister of Law, Justice, and Corporate Affairs will consult the departing Chief Justice of India.
• According to Article 124(2) of the Constitution, the selection of the next Chief Justice of India will be made after consultation with other judges if there is any doubt as to the senior-most Judge's fitness to hold the position.
• The Union Minister of Law, Justice, and Corporate Affairs will submit the Chief Justice of India's suggestion to the Prime Minister after receiving it, who will then advise the President on the appointment.
• But up to 1973, the highest ranking Supreme Court justice was referred to as the "Chief Justice of India."
• The president always followed this procedure because it had come to be known as a "convention."
• When Justice A.N. Roy was named Chief Justice of India, following three senior Supreme Court judges, the government immediately stopped using this method.
Judge Qualifications
A candidate for a Supreme Court judgeship should meet the requirements listed below:
• He or she must be a citizen of India.
• He or she must be a prominent jurist in the president's opinion and must have served as a judge of a High Court (or High Courts in succession) for at least five years, or as an advocate of a High Court (or High Courts in succession) for at least 10 years.
• As a result, the Constitution does not mention a minimum age requirement for nominees to the Supreme Court.
Swear or Affirmation
• A person must take and sign an oath or affirmation in front of the President or someone else he or she has appointed for that purpose before taking office as a Supreme Court judge.
• A Supreme Court judge takes the following oath before entering office:
• Must firmly adhere to and respect the Indian Constitution.
• To protect India's independence and integrity.
• To sincerely and honestly carry out the responsibilities of the Office to the best of his skill, knowledge, and judgment without fear of favor, affection, or malice.
• To uphold the law and the Constitution.
Duration of Judges
The Constitution makes no mention of a judge's term limits for the Supreme Court.
It does, however, include the following three clauses:
• He/she serves in that capacity until he/she becomes 65. His age will be determined in accordance with Parliament's authority and in the manner it stipulates.
• He may resign from his position by sending a letter to the President.
• The President has the authority to have him removed from office at the Parliament's proposal.
• The Consolidated Fund of India is used to pay the judges' salaries and other administrative costs, which are not subject to parliamentary approval.
• Judges of the Supreme Court are prohibited from pleading or acting in any court or before any authority within the boundaries of India once they have retired.
Elimination of Judges
• A Supreme Court justice may be removed from office by presidential decree. The President may only issue the removal order after delivering to him/her in the same session an address from Parliament.
• The address must be approved by a special majority of each House of Parliament, which is defined as a majority of that House's overall membership and a majority of at least two-thirds of its members who are present and voting. Removal may occur for either incapacity or demonstrated misbehavior.
The process of impeachment used to dismiss a Supreme Court justice is governed by the Judges Enquiry Act (1968):
• No justice of the Supreme Court has been impeached as of yet. Motions to impeach Justices Dipak Misra (2017–2018) and V. Ramaswami (1991–1993) in the Parliament were unsuccessful.
Acting Chief Justice
The Chief Justice of India may be temporarily appointed by the President in the following circumstances:
• The position of India's Chief Justice is unfilled.
• India's Chief Justice is momentarily absent.
• The top justice of India is unable to carry out his official responsibilities.
Ad Hoc Judge
• The Indian Constitution's Article 127 addresses the appointment of ad hoc judges.
• The Chief Justice of India may appoint a judge of a High Court as an ad hoc judge of the Supreme Court for a specific period of time when a quorum of permanent judges is required to hold or continue a Supreme Court session.
• Only after seeking advice from the chief judge of the appropriate High Court and gaining prior consent from the president, is he permitted to do so.
• The judge chosen in this way needs to be qualified to sit on the Supreme Court. The judge thus appointed has the duty to attend Supreme Court sessions in addition to his other obligations.
• While doing so, he exercises all of the Supreme Court judge's authority, rights, and responsibilities.
Retired Judge
• The Indian Constitution's Article 128 addresses retired judges' attendance at Supreme Court sessions.
• A retired judge of the Supreme Court or a retired judge of a high court who is legally qualified for appointment as a judge of the Supreme Court may, at any time, be proposed by the chief justice of India to serve for a temporary term as a judge of the Supreme Court.
• Only with the previous consent of the president and the candidate being nominated is he able to do so.
• Such a judge shall be entitled to such allowances as the President may determine.
• He will also be entitled to all the privileges, rights, and responsibilities of a Supreme Court judge. But he won't be regarded as a Supreme Court justice.
Judges' Appointments And The Development of The Collegium System
• The Term "Consultation" Has Been Given Several Different Definitions By The Supreme Court.
• According to the Supreme Court's ruling in the First Judges Case from 1981, the word "Consultation" cannot be construed to entail "concurrence," hence the government is not bound by the CJI's opinion.
• The Executive could only diverge from the CJI's ruling in unusual circumstances, and any such decision might be challenged in court.
• In the Second Judges case (1993), the Supreme Court overturned its earlier ruling and changed the definition of consultation to concurrence.
• In the Second Judges Case (1993), it restricted the government's authority by deciding that the Chief Justice of India would be chosen only by the senior-most judge on the Supreme Court.
• The court defended its ruling by stating that the CJI was the best option for learning about and determining the merit of candidates.
• The "collegium," as it is referred to by the court, is a collection of senior judges, and it is via this group that the CJI must only issue opinions.
• In the Third Judges case (1998), the Supreme Court ruled that the Chief Justice of India's consultation process necessitates "consultation with plurality judges."
• The CJI's lone opinion does not define the consultation procedure. A collegium of four senior Supreme Court justices should be consulted before making a recommendation, and even if two of them disagree, the advice should not be made to the administration.
• The court concluded that the government was not bound by the top Indian judge's proposal, which was made without adhering to the criteria and conditions of the consultation process.
• The "three judge’s case" led to the development of the Collegium system, which has been in use since 1998 and is used to nominate and transfer judges in the High Courts and Supreme Courts.
• Both the original Indian Constitution and later versions omit any mention of the Collegium.
• The Collegium system in India, also referred to as "Judges-selecting-Judges," is one in which judges are the only ones who may choose and transfer judges.
• Rather than a law passed by the legislature or a clause in the constitution, the system has changed as a result of Supreme Court rulings.
• Four of the Supreme Court's senior judges make up the Supreme Court Collegium, which is headed by the Chief Justice of India.
• The appointment procedure was enhanced and improved through the use of technology.
• To ensure that the CJI's opinion is formed collectively rather than as an individual opinion by a group of people at the highest level of the court.
Collegium System
• A portion of the Central Government's suggested names are given to the Collegium, which also offers recommendations to the Central Government for lawyers or judges.
• It evaluates any suggestions made by the Central Government before resubmitting the dossier for final approval.
• There is no time restriction imposed for responding, which makes the process of appointing judges so lengthy. However, if the Collegium sends the same names to the Government twice, the Government must approve the names.
National Judicial Appointments Commission (Njac)
• The 99th Constitutional Amendment Act created the National Judicial Commission Act (NJAC) in 2014 to replace the collegium system for appointing judges.
• The National Judicial Appointments Commission Act (NJAC) and the Constitutional (Ninety-Nine Amendment) Act, 2014 were found to be illegal in October 2015 by a five-judge Constitution Bench.
• Contrarily, the Supreme Court backed the collegium system and ruled the NJAC to be illegitimate, contending that the political executive's involvement in judicial selections violated the Principles of Basic Structure, specifically the independence of the judiciary.
Fourth Judges Case (2015)
• By striking down the NJAC legislation in the Fourth Judges Case, 2015, the Supreme Court upheld the collegium's power.
• The NJAC Act, according to the court's reasoning, violates the Basic Structure of the constitution's "separation of powers" principle by giving politicians an equal say in choosing judges for constitutional tribunals.
• Because the collegium is a fundamental component of the Constitution, the Supreme Court determined that it cannot have its authority revoked, not even by a constitutional amendment.
• However, the resolution promised to study all necessary adjustments to improve the collegium system in response to significant criticism of the collegium.
• The administration was required to file the Memorandum of Procedure (MoP) for this reason by the Supreme Court.
Memorandum of Procedure (Mop)
• A set of rules for appointing to the higher courts are part of an agreement between the government and the judiciary.
• The draughts MoP was presented by the administration to the Supreme Court, but it is currently in dispute between them since some parts are alleged to restrict the court's capacity to choose justices.
Problems With The Collegium System
• Lack of Transparency: The collegium system lacks transparency because there is no published working manual, no selection criteria, arbitrary decision-reversal, and selective release of meeting minutes.
• The process of selecting judges is unknown, and the outcomes raise concerns about propriety, self-selection, and nepotism.
• The system routinely ignores a number of outstanding junior judges and lawyers.
• Lack of Consensus: When choosing judges, the collegium members regularly wrestle with the issue of shared consent.
• The judicial system's shortcomings are exposed by the cloud of mistrust that hangs over the collegium.
• For instance, due to a lack of agreement among the collegium members, Sharad A. Bobde, the recently retired Chief Justice of India, is thought to be the first chief justice to have failed to offer even one recommendation for appointment as a Supreme Court judge.
• Women are notably underrepresented in the upper judiciary, despite the absence of caste data, which is another cause for concern in the makeup of the higher courts.
• Judicial Appointments Delay: The collegium's proposals for the higher judiciary are taking longer than expected, which is delaying the judicial appointment process.
• Contrary to accepted conventions: Seniority has long been accepted as the standard for appointment, but supersession disregards and renounces this standard, permitting subjectivity and personal bias in selections.
• Despite the arguments of the fourth judge, no changes were made: after striking down the NJAC Act, the court did not amend it or include safeguards that would have made it constitutionally viable, instead reinstating the existing Collegium-based appointment system.
Way Forward
• The subjectivity and irregularities of the collegium system highlight the necessity to reevaluate the selection procedure for judges.
• To ensure the independence of the judiciary in its decisions, the NJAC should be reconstituted and reinstated in some capacity.
• To encourage transparency and a rule-based process, the Supreme Court should publish a written rulebook that nominees should adhere to, and all meeting recordings should be made available to the public.
• India must therefore make the selection of justices a transparent and democratic process in order to reestablish the higher judiciary's legitimacy.
• The creation of All India Judicial Services (AIJS) can aid in raising the standard of judges in addition to reforming the collegium system.
• It is essential that the court, which is a crucial pillar of civil liberties, be completely autonomous and unhindered by the Executive's direct and indirect influence. The Indian constitution established an integrated judicial structure, with the Supreme Court at the apex and the high courts below it. Since the adoption of our Constitution, the Judiciary has played a critical role in interpreting and safeguarding the Constitution whenever a disagreement has occurred.