Breaking The Logjam, Handing Over The Baton

Context: With the Supreme Court Collegium showing the way (by selecting as many as nine judges, including three women, for appointment to the Supreme Court) in judicial appointments, the executive needs to match its pace.

Complexities associated with selection and appointment of judges at the higher judiciary

• Difficulties in building consensus: The members of the Collegium are all the senior-most judges. 
  • With their keen intellect, long years of experience at the Bench and an admirable ability to discern merit in individuals, it is a tough task to build a consensus around one person or a few persons.
• Social equity factors: The overriding concern of the Supreme judiciary is to ensure equal opportunities to all classes of people … be they backward classes or scheduled castes or scheduled tribes or minorities or women
• Opaqueness in processes: India is perhaps the only country where the judges select judges to the higher judiciary.
• Non-existing ‘Rule of Seniority’: This has led to a logjam (between Government and judiciary) of 22 months, adding to the piling up of cases in the Supreme Court.

Way Forward:

• Delivering ‘complete justice’ in selection: Article 142 (1) contains the concept of ‘complete justice’ in any cause or matter which the Supreme Court is enjoined to deliver upon.
• In the Supreme Court Advocates-on-Record Association and Another vs Union of India (1993), the Court spelt out the parameters within which to accomplish the task of selecting candidates for appointment to the higher judiciary. The most crucial consideration is the merit of the candidates. 
• Ensuring the interest of the marginalised: In the pluralistic society of India, it is important to consider differing interests of people with a multiplicity of religions, races, caste and community and culture.
• Need for transparency: In 2019, a five-judge Bench of the Supreme Court laid emphasis on this point. 

Conclusion: The complexities associated with the selection and appointment of Judges are here to stay, yet, the Collegium has done a good job in selecting nine Judges in a go. Now, it is time for the Government to match the pace and take the process of appointments to its logical conclusion at the earliest.