Appointments of Judges.........Collegium verses Appointment Commission.....what next:

The recent judgment of the Supreme Court shocked the whole of India as it struck down the provisions of NJAC (national judicial appointments commission) unconstitutional and consented the continuation of collegiums system where appointment of judges were arbitrarily done which further had complicated the situation instead of finding the solution for judiciary system and making it fair in the eyes of people.

Initial constitutional provisions of the constitution stated that the judges would be appointed by the government in consultation with the chief justice of India. Government was sometimes not bound by the decision of CJI. This used to create confusion and controversy about the independence of judiciary with the government. However the various judgments which were later given by the Supreme Court made the role of judiciary supreme and accordingly in 1993 collegium system were introduced.

Under this system judges in Supreme Court and high court were appointed by the penal of top 5 Supreme and High court existing judges. Selected names are being sent to executive (government) for approval. Government may return that proposal for reconsideration but if send for ratification the recommendation of the judges (judiciary) are binding on government.

In past there have been many cases in which doubts were created about the most suitable candidates for judges as certain section of the society  felt that the collegiums was itself a opaque system and it lack accountability and objectivity of appointment of new judges. It was based on discretionary powers therefore a new system was enacted by parliament vide 99^th amendment in constitution in 2014 to regulate the procedure in appointment of judges and to make choices free from personal biases NJAC (national appointment commission) was bought in to action. Under this system a panel of law minister, 2 eminent citizen, leader of opposition in the parliament , CJI, senior most SC judges and prime minister will jointly decide about the appointment of judges. This system was passed by parliament and the same was ratified by the 20 states and union territories.

This system was implemented from April 2015 but could not be in view as CJI refused to be part of NJAC. Finally NJAC was declared unconstitutional. As NJAC had been struck down this has again created confusion about the supremacy of the parliament and appointment of judges. 

In my opinion NJAC would have been an appropriate way of electing judges rather than following the old collegiums system. It is true that collegium system had solved the problems of excessive execution in appointment of judges but at the same time it lacked confidence of the people as they thought that it was based in the discretionary powers and personal biases if judges. Further the collegium system is not transparent; it is secretive and is opaque. This has further led to increasing democratic deficit. In order to rectify the present system NJAC was introduced which could indeed solve the aforesaid problems but was guided unconstitutional by the Supreme Court.    

No system in itself is complete. It is necessary that in the present collegiums system transparency needed to be enhanced and adhocism needed to be curtailed. This fact was reiterated by the two judges who held that the collegiums system lacked transparency and excluded the deserving candidates. There should be nothing controversial in the appointment of judges as it would be for the welfare of the society only and whatever the system is implemented it should certainly reflect the independence along with the caliber and capability of the judges who are appointed.

To adhere to this principle Supreme Court will be hearing certain petition very soon about the changes which may lead to strengthening of the present collegiums system. For the government it will be necessary to keep check on the independence of judiciary system and to further weed out things which are hampering the transparency in the appointment of judges.

As a matter it is of great Importance that it may further take some more time to finally settle down this matter.