The Impasse Over Higher Judicial Appointments in India

Abstract

Judiciary is the third and an essential pillar of the democratic set up governed by Rule of Law in India. Judiciary must be impartial, fair and a competent body to ensure justice and strengthen public confidence. Originally, the Indian Constitution provided a memorandum of procedure to be followed to appoint the Judges of Supreme Court of India and High Court. The said procedure comprised of a ‘participatory consultative appointment’ by both the Executive and Judiciary. After the drafting of the Constitution, for the first forty years, the said procedure was carried out satisfactorily with only a few contentious incidents. But after the ‘Second Judges’ case in the year 1993, the Supreme Court put an end to the existing participatory consultative procedure and designed a new arrangement, called the “Collegium” for the selection of judges to both the Supreme Court and the High Court. However, the flaws and inefficiency of the collegium are being exposed by recent incidents. The issue that has emerged recently is, whether or not the Collegium of the Supreme Court is the only source authority to appoint Judges who will not only be independent and impartial but also free from the participation of the executive wing which impairs its independence. The Paper elucidates the framework for Higher Judicial appointments, the landmark Judges cases, the Collegium system and the critique, the NJAC Act, the judgement of the NJAC, the inadequacy and the transfer of Judges of High Court, some suggestions for a transparent and independent Judiciary.