September 20, 2022

Good morning. In today’s either/view, we discuss whether the Collegium system of appointing judges in India is the right approach. We also look at the inauguration of paperless courts in Odisha, among other news.

📰 FEATURE STORY

Collegium System Of Appointing Judges – Should It Be Rethought?

The Indian administration is guided by three pillars – legislature, executive and judiciary. The judiciary is the branch of government that interprets the law set in our constitution and administers justice to all of us. Nicknamed the ‘watchguard of democracy’, the judiciary is an independent functioning body free from interference from other organs of the government.

For a democracy to function effectively, an impartial and independent justice system is imperative. This is precisely why the method of appointment of judges in the judiciary is a crucial aspect of judicial independence.

Context

According to Article 124 of the Indian constitution, every judge of the Supreme Court shall be appointed by the President with the consultation of the Chief Justice of India and the Supreme Court judges. The current Indian judicial Collegium system, where existing judges appoint judges to the court, has evolved over time. The danger of the Chief Justice’s or President’s individual opinion affecting those elected was far too high, and the Collegium system was introduced to strengthen the appointment process. The Collegium acts as a control mechanism to keep in line the power the President exercises.

The Collegium is intended to make fair, just and collective decisions regarding the appointment of judges in the judiciary, making sure the process is as democratic as possible. For example, if two or more judges in the Collegium dissent a decision the Chief Justice or President has made, the respective parties should not persist with the recommendation, making sure the process is as democratic as possible.

Recently, there has been much debate about the democratic nature of this Collegium approach to appointing judges. The Union Law and Justice Minister Kiren Rijiju suggested that there is a need to rethink the Collegium system to speed up the process of appointments. His comments revolved around structural changes required in the Collegium system.

Furthermore, recent and increasing trends of nepotism in the courts have also led many to question the Collegium system. Should the court persist with this system?

VIEW: Collegium system should be rethought

There is a growing belief among many that the Collegium system is above the safeguards of transparency and accountability that apply to India’s pillars of democracy. Many believe that since the system itself is undemocratic, and judges are not elected by the people, they are also not accountable to the citizens themselves. While this independent nature of the system may have been put in order to reduce bias, one can argue that it has led to several internal biases in the system.

Former Supreme Court Judge Arjan Kumar Sikri, who served on its Collegium from 2018 to 2019, said, “Most times, we [the Collegium] go by “our impression” when appointing judges.” This ‘impression’ is something that is entirely biased and value-laden and cannot lead to an efficient decision in electing judges to the judiciary. The lack of information about the appointment of judges, including the absence of formal criteria that is privy to the general public provides ample opportunity for internal biases.

The judicial Collegium has at various points faced allegations regarding conflicts of interests, but there is no way to investigate these allegations because there is no awareness of the criteria used to elect judges in said Collegium.

Furthermore, factors like the social background of judges inevitably influence the collegiates’ decisions. Rather than selecting and promoting “judges of the subordinate judiciary,” who often represent a diverse pool of candidates, the Collegium system prefers practising lawyers instead. This leads to the composition of the high courts being upper-caste, heterosexual, old men who cannot effectively provide grassroots-level solutions since they are so far removed from them.

COUNTERVIEW: It is democratic and should be maintained

Asserting that the selection process “could not be more democratic than this”, former Chief Justice of India NV Ramana defended the Collegium system of appointing judges. He asserted the view that the appointment of judges is done through a lengthy process where many stakeholders are involved.

Many firmly state that the only way democracy can be safeguarded is by maintaining the judiciary as an independent body, and the Collegium process independent from outside intervention. Judges who are a part of the collegiate selection are qualified and have earned their position through merit. One can argue that if they have been tasked with the responsibility to serve justice, they are also equipped with the responsibility of deciding who can serve justice.

Furthermore, the collegiate process is a complicated one that involves both the executive and judiciary. While both parties are involved, the collegiate in its name selection stays independent and unbridled while recommending potential candidates to the government. According to the Justices in the 99th amendment case, judicial independence includes judicial appointments, and the role of the judiciary in the appointment process is integral to maintaining judicial independence. There should not be an option where the opinion of the judiciary can be vetoed by the primacy of the executive, as this leads to political influences externally.

While critics of this collegiate process are several, they provide no conclusive alternative to this system that may be more effective, rendering their arguments obsolete.

Reference Links:

Is giving judges the final say in judicial appointments the only way of ensuring their independence? – Scroll
‘Cannot get more democratic than this,’ says CJI Ramana on Collegium system – The Print
How does the collegium system protect the Judiciary from political influence – iPleaders
Collegium System in India – Legal Service India
Need to rethink collegium system of appointment, suggests Law Minister Kiren Rijiju – The Hindu
Collegium System in the Indian Judiciary Needs to be Reformed for Greater Transparency and Accountability – Economic and Political Weekly

What’s your opinion on this?
(Only subscribers can participate in polls)

a) The Collegium system of appointing judges should be reformed.

b) The Collegium system of appointing judges should not be reformed.

🕵️ BEYOND ECHO CHAMBERS

For the Right:

An Indian Paradox – India’s Voluminous Media Is Without Bite

For the Left:

AAP-Ruled Punjab Is Missing The ‘Delhi Model’ Kejriwal Is Promising In Gujarat And Himachal

🇮🇳 STATE OF THE STATES

Plastic roads soon? (Jammu & Kashmir) – The J&K administration is exploring the possibility of using plastic waste to construct roads. It has begun studying a proposal. The aim is to reduce the carbon footprint in the ecologically-vulnerable areas. An Inter-Departmental Committee has been established by the Public Activities (Roads and Building) Department. The committee will take into account the environmental concerns while studying the project’s feasibility.

Why it matters: So far, the Centre has already built 1 lakh km of roads using plastic in eleven states. For every kilometre, 9 lakh tonnes of bitumen and one tonne of plastic waste were needed. So, for every kilometre, one tonne of bitumen is saved. In 2016, Union Minister Nitin Gadkari said plastic waste could be used in constructing roads. In J&K, plastic waste can be used on the 270-km Srinagar-Jammu National Highway.

Court judgment on Knanaya Church expelling members (Kerala) – A district court said that the expulsion of members of the Knanaya Catholic community for marrying outside their community violated Article 25, which guaranteed citizens the right to practice their faith and religion. It upheld a 2018 lower civil court’s decision. At the time, the expelled members filed a suit. The judge said endogamy wasn’t an essential religious practice to limit membership.

Why it matters: Knanaya Catholic Naveekarana Samithy is a reform group based in Kottayam. The lower court said endogamy violated the fundamental rights of Knanaya Catholics to choose a life partner of their choice. Knanaya Catholics are a section of St Thomas Christians in Kerala. They have separate religious practices with a dedicated church for them. The district court said cases dealing with worship and marriage have civil consequences.

Paperless courts inaugurated (Odisha) – Chief Justice Uday Umesh Lalit and Justices Dhananjaya Y. Chandrachud and M.R. Shah of the Supreme Court inaugurated 34 paperless courts across the state’s 30 districts. Justice Lalit detailed his experience working with physical records and books in his early legal career. He spoke of the need to use technology and eliminate paperwork. He praised the record management system in the Odisha judiciary.

Why it matters: Other states have already begun the process of moving to paperless courts. The Kerala High Court had its first paperless court earlier this year. Justice DY Chandrachud inaugurated the smart courtrooms on January 1. Cases will be filed and e-processed. In 2016, the Hyderabad High Court got its first paperless court using digitised records. Given the high backlog of cases across the country, paperless courts ensure speedy trials and better access to justice for the public.

Rise in Electric Vehicle (EV) sales (Rajasthan) – EVs are becoming popular in the state. According to the state transport department, sales have increased sixfold in the past three years. In particular, the sales of two-wheelers are the highest due to comfort and mobility. The policies of the state government concerning EVs are also helping boost sales.

Why it matters: In 2019, a total of more than 6,600 EVs were sold in the state. The following year, sales decreased slightly due to the pandemic. However, in 2021, sales jumped to more than 23,000. People choose EVs over traditionally fuelled vehicles as they have lower running costs. The government provides subsidies on purchases of EVs. In May, Chief Minister Ashok Gehlot approved the draft EV policy.

Fashion Week to showcase indigenous artisans (Tripura) – The Rignai Fashion Clan is organising the Tripura Fashion Week on September 24 to showcase boutiques and indigenous artisans of the region. They’ll be able to showcase their talents that reflect the social, cultural, and traditional aspects of the state. Some designers will be chosen to participate in the 6th edition of North East India Fashion Week at Guwahati.

Why it matters: The fashion week is not only an opportunity to showcase their work, but artisans will be able to network with partners and local markets. The event is also looking to showcase and promote work done by the women of Tripura. Outsiders will be exposed to their work through stalls of boutiques and designers.

🔢 KEY NUMBER

₹8.36 lakh crores – The gross direct tax collections for this fiscal. It’s a 30% increase from the last fiscal of ₹6.42 lakh crores.