JUDICIAL APPOINTMENTS

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The Supreme Court of India criticized the Union Government for withholding names recommended by the collegium for judicial appointments and also stated that the government is using silence and inaction as “some sort of a device” to force worthy candidates and prominent lawyers to withdraw their consent.
The Supreme Court itself 7 judicial vacancies out of a sanctioned strength of 34 judges. As of November 1, the judicial vacancies in 25 High Courts number 335 out of a total sanctioned strength of 1,108 judges.
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.

Collegium System

Under the Collegium System, appointments/elevation of judges/lawyers to the Supreme Court and transfers of judges of High Courts and Apex Court are decided by a panel of the Chief Justice of India and the four senior-most judges of the Supreme Court.’
The word ‘Collegium’ is nowhere mentioned in the Indian Constitution, it has come into force as per Judicial Pronouncement.

Evolution of Collegium System

Under the Constitution, The Judges of the Supreme Court are appointed by the president. The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary.
- The other judges are appointed by the president after consultation with the chief justice and other judges of the Supreme Court and the high court as he deems necessary.
- Consultation with the chief justice is obligatory in the case of the appointment of a judge other than the Chief justice
First judges case (1982): The Supreme court held that consultation does not mean agreement and it only means an exchange of views.
Second judges case (1993): The court changed its earlier ruling and changed the meaning of the word consultation to consensus.
- It ruled that the advice tendered by the CJI is binding on the President in matters of appointment of SC judges. But any such advice would be tendered after CJI consults with two of his most senior judges.
Third judges case (1998): The consultation process should be based on the plurality of judges.
- CJI should consult a Collegium of four senior-most judges before making a recommendation to the President and even if two judges give an unfavourable opinion, he should not send the proposal to the President.

Qualifications for Supreme Court Judges

A person shall not be qualified for appointment as a Judge of the Supreme Court unless he/she
- Is a citizen of India, and
- Has been for at least five years a judge of a High Court or two such Courts in succession; or
- Has been for at least ten years an advocate of a High Court or two or more such Courts in succession or is, in the opinion of the President, a distinguished jurist.
Every person appointed to be a Judge of the Supreme Court shall, before he/she enters upon his/ her office, make and subscribe before the President an oath or affirmation according to the form set out in the Third Schedule of the Constitution.
The Constitution does not prescribe a minimum age limit for a judge to occupy his/her office.
A Judge of the Supreme Court continues to hold the office till he/she attains the age of 65 yrs.
A Judge of the Supreme Court may tender their resignation to the President even before he/she reaches the age of 65 years.
A Judge of the Supreme Court, after retirement, shall not do legal practice in any court in the territory of India and shall not plead before any authority under the Government.

Appointment of the High Court Judges

According to Article 217, the Chief Justice of a High court is appointed by the President in consultation with the Chief justice of India as well as the Governor of the state.
A Collegium headed by the CJI makes a recommendation to the government for the appointment of judges.
The Collegium recommends the eligible names to the law ministry which after scrutinizing recommended to the president.
The president either approves the names or returns the names for reconsideration by the Supreme Court.
- If the Supreme Court sends the names 2nd time then the president appoints the recommended persons.
Qualification
- He should be a citizen of India.
- He should have held a judicial office in the territory of India for 10 years or Should have been an advocate of the high court(s) for 10 years.
- No minimum age is fixed for High Court judges.
A High Court Judge holds the office till the age of 62 years.
The salaries and allowances of the Chief Justice of the High Court and Other High Court Judges are decided by the parliament by law, from time to time.
Salaries and other expenses are charged from the consolidated fund of the State.
- Pension comes from the Consolidated Fund of India.
A Judge of the High Court can be removed from office only for proven misbehaviour or incapacity and only in the same manner in which a Judge of the Supreme Court is removed.

Concern

Over 31 million cases are pending in Subordinate Courts across the country.
Case pendency Hurts investors’ confidence.
Economic activity is getting affected by high pendency and delays across the legal system.
It adds a burden on Courts and collaterally harms other litigants.
It increases project costs and delays projects.
Slows down administrative processes, delaying decision-making.
Diversion of precious resources.
Effects ease of doing business.

Steps by the Government to reduce judicial pendency

Adoption of “National Litigation Policy 2010” to transform the government into an Efficient and Responsible litigant.
All states formulated state litigation policies after National Litigation Policy 2010.
Legal Information Management and Briefing System (LIMBS), was created in 2015 with the objective of tracking cases to which the government is a party.
The Supreme Court advised the centre that criminals sentenced to imprisonment for 6 months or a year should be allocated social service duties rather than be sent to further choke the already overflowing prisons.

Steps need to be taken to reduce judicial pendency

National Litigation Policy should be revised.
Address all 3 stages of dispute:
- Pre-litigation
- Litigation
- Post litigation stage.
Establish Fair accountability mechanisms, Consequences for violation must be provided.
Appointment of a Nodal Officer to regularly monitor the status of the cases in every department.
Promotion of alternative dispute resolution mechanisms to encourage mediation.
Coordinated action between government and judiciary.
Judicial capacity should be strengthened in the lower courts to reduce the burden on higher courts.
Increase expenditure on the judiciary.
Improve court case management and court automation system.
Create subject-specific benches.
Tax departments must limit their appeals as their success rate is less than 30% at all three levels of the judiciary.
Robust internal dispute resolution mechanisms
Step-by-step online dispute resolution must be adopted as done by the Ministry of Consumer Affairs.
Judges should write Shorter and more Pointed judgments.

Way Forward

Courts need to monitor the progress of Cases based on urgency and type of Case.
Courts must set a time limit to dispose of certain types of Cases.
Understand why Some Courts perform well despite a Shortage of judges and adopt Such Courts as role models.
Analytics tools can be developed in a manner that helps the judges monitor Cases based on parameters Such as how long an accused has been in judicial custody, Cases that can affect the General public, and Cases that have been long pending.
Alternative methods should be used for dealing with non-criminal offenders and petty criminals.