Court System or Legal System

The National Judicial Appointments Commission (NJAC) and the Collegium system have been the two primary methods for appointing judges to the Supreme Court and high courts in various countries. The NJAC was proposed as an alternative to the Collegium system in India, but was recently declared unconstitutional by the Supreme Court (SC).

The NJAC was intended to be an independent commission, promoting a balance of power and transparency. It was designed to include participation from all three organs of the government. However, the SC declared it unconstitutional on the grounds that it shifts the balance of power towards the executive, threatens the independence of the Judiciary, and includes the Law Minister as a part of the commission.

On the other hand, the Collegium system is the current method for appointing judges in India. It involves consultation among judges, with the Chief Justice of India (CJI) playing a central role. The advice tendered by the CJI in the Collegium system is binding on the President.

In comparison, the UK Supreme Court judges are appointed by a five-person selection commission. In Canada, appointments are made by the Governor in Council, with a selection panel comprising five MPs. In the USA, appointments are made by the President, with Supreme Court Justices being nominated by the President and confirmed by the United States Senate.

The independence of the Judiciary is considered non-negotiable by the court. The perceived threat to the independence of the Judiciary was a reason for declaring the NJAC unconstitutional. In Slovakia, a five-member selection commission for appointing judges of the highest court consists of the Minister of Justice, the President of the Constitutional Court, the President of the Supreme Court, and two university law professors.

The Collegium system and seniority as a method for appointing judges rule out external influence and give every judge an opportunity. However, seniority leads to short tenure, affects leadership and innovation, and undermines social, gender, and regional diversity. Merit, as a method for appointing judges, promotes innovation and encourages meritorious people to join the Judiciary. However, it risks external influence and is subjective.

The proposed independent commission for appointing judges, as recommended by the 2nd ARC, includes the CJI, Vice-President (Chairperson), Prime Minister, Law Minister, Speaker of Lok Sabha, Leaders of Opposition from both Houses of Parliament, and no representative from the executive. This composition is intended to maintain the independence of the Judiciary while ensuring a balance of power and transparency.

In conclusion, the debate surrounding the appointment of judges to the Supreme Court and high courts is a complex one. Each method has its pros and cons, and striking a balance between independence, merit, and transparency is crucial. The recent declaration of the NJAC unconstitutional by the SC underscores the importance of maintaining the independence of the Judiciary.