Court System or Judicial Branch

The Collegium system, currently employed in India for the appointment of judges to the Supreme Court and High Courts, has been a subject of debate for several years. This system, which involves the consultation of a plurality of judges, specifically the four seniormost judges of the Supreme Court, has been instrumental in maintaining the independence of the judiciary while ensuring a balance of power.

Under the Collegium system, the judiciary is barred from parliamentary interference, and judges appointed through this process are granted fixed service conditions. These conditions cannot be altered to their disadvantage after appointment, ensuring job security and independence. The advice tendered by the Chief Justice of India under this system is binding on the President, and the judiciary holds the power to punish for its contempt.

However, the Collegium system is not without its drawbacks. The seniority system, which is a part of this process, has advantages such as ruling out external influence, providing opportunity for all, and ensuring clarity about who will serve at the helm. However, it also leads to short tenures, discourages merit, and undermines social, gender, and regional diversity.

In contrast, the merit system, as seen in the USA, promotes innovation and encourages meritorious people to join the Judiciary. It provides strong leadership if fixed tenure is implemented. However, it also carries the risk of external influence, the difficulty in defining merit, and the potential for dissatisfaction among those with seniority.

The independence of the judiciary remains a non-negotiable aspect of the constitutional provisions, and various bodies like the 2 ARC, Law Commission, and NCRWC have recommended setting up an independent commission for the appointment of judges to address these concerns. This proposed commission typically includes the Chief Justice of India, the Union Minister of Law and Justice, and two senior Supreme Court judges. For High Court judges, the Chief Justice of the relevant High Court of that state replaces the CJI in the commission.

The participation of all three organs of the government, as proposed in the independent commission, promotes a balance of power and transparency by eliminating the dominance of any one organ. This approach is also used in the UK, where a five-person selection commission is involved in the appointment process, with members appointed by the Judicial Appointments Commissions of England, Scotland, and Northern Ireland.

In Canada, appointments are made by the Governor in Council, with a selection panel comprising five MPs reviewing and submitting nominees. In these systems, the independence of the judiciary is maintained while also promoting merit and transparency in the appointment process.

The National Judicial Appointments Commission (NJAC), proposed as an alternative to the Collegium system, was declared unconstitutional by the Supreme Court. The proposed way forward continues to be a topic of discussion, with the need for a balanced, transparent, and merit-based judicial appointment system being widely recognised.