Your guide to Supreme Court Collegium Vs Centre issue — From problems to possible solutions

What is the SC Collegium? What is the NJAC Act? Who is in favour of what? What is the implication if Rijiju's proposal gets accepted? what are the possible solutions to the debate? Here's a wholesome guide to the Center Vs SC issue:

Judges of the Supreme Court and high courts are appointed or transferred under the collegium system. There are five members in the Supreme Court Collegium. It includes the Chief Justice of India and four senior-most Judges of the Supreme Court. Meanwhile, a High Court collegium is led by the incumbent Chief Justice and two other seniormost judges of that court. The composition of the collegium keeps changing.

The government come into play only after the SC decides the names of the judges to be recommended for elevation in the Supreme Court or a high court. The government can then raise objections and seek clarifications over the collegium’s choices. However, if the collegium reiterates the same names, the government has no option but to appoint them.

"Once the Collegium reiterates a name, it is the end of the chapter," a Supreme Court bench had said earlier, adding, there cannot be a situation where recommendations are being made and the government keeps sitting on them" as this frustrates the system".

After receipt of the final recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs will put up the recommendations to the prime minister who will advise the President on the matter of appointment.

The government argues that there have been many pending cases because there are many judges' vacancies yet to be filled. These vacancies are to remain till the new system is in place, Rijiju had told Parliament in December's winter session.

Meanwhile, the Supreme Court says that the issue has arisen because the government keeps "sitting" on the recommendations of the SC Collegium. A Supreme Court recently alleged that many names have been pending with the Centre for months and years, including some which were reiterated by the collegium.

The government says the Supreme Court Collegium lacks transparency and is a "closed-door affair" as no one knows on what basis the judge is being appointed. "Also there is no accountability," Rijiju said earlier, highlighting "loopholes" in the system.

He also called it an "alien" concept. "You tell me under which provision the collegium system has been prescribed," he had asked, raising questions over the role of the government in the collegium system. "...if you expect they should merely sign (on) the name to be appointed as a judge just because it is recommended by the collegium, what is the role of government then?," he asked.

There is no procedure as such. The Collegium generally "pick and choose. "It is not a methodical thing but an "arbitrary affair, said Dr Vidyottma Jha, a Supreme Court advocate said.

The appointment of judges to the Supreme Court of India and high courts is provided for in Article 124(2)4 and Article 217(1)5 of the Constitution, respectively. "The Chief Justice of India and the judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Constitution," a government website says.

Meanwhile, the Indian Express reports that the "collegium system is not rooted in the Constitution or a specific law promulgated by Parliament; it has evolved through judgments of the Supreme Court".

The Supreme Court has maintained that the collegium system of appointment of judges is the law of the land and "any law declared by it is "binding" on all stakeholders. Meanwhile, some lawyers alleged that "recommendations of the qualified and deserving people have not been accepted by the Ministry of law and justice."

On the question of how a judge's name is recommended, Advocate Atif Suhrawardy, a Supreme Court lawyer, told CNBCTV18.com, "Who better would know a meritorious advocate than a sitting judge...a bureaucrat who reads a file knows a potential judge or a judge who sees an advocate practising day in and day out would know him better? Who would have a better chance of evaluating a prospective judge?"

The Supreme Court and the government have differing opinions on the NJAC Act, which was once enacted to help with the appointment of judges, but was then scrapped because it was "unconstitutional".

Like the Collegium, the NJAC (National Judicial Appointments Commission) Act also regulated the procedure for appointing and transferring judges of the Supreme Court and the High Courts. However, the commission involved the bureaucrats, the government and some politicians.

The NJAC comprised the Chief Justice of India as the ex officio Chairperson, two senior-most Supreme Court Judges as ex officio members, the Union Minister of Law and Justice as ex officio member, and two eminent persons from civil society — one of whom would be nominated by a committee consisting of the CJI, Prime Minster and the Leader of Opposition in the Lok Sabha, and the other would be nominated from the SC/ST/OBC/minority communities or women.

It was passed by Parliament in 2014 and later struck down by the Supreme Court in 2015 by the ration of 4:1.

The basic structure of the constitution talks about the separation of powers but the problem was NJAC was that "there was political interference in the formal procedures" of appointing judges\, said Suhrawardy.

He added, "The legislature was getting into the role of the judiciary, "Atif Suhrawardy said. Here, the principle of separation of power was violated and the independence of the judiciary cannot be ensured at all. "The basic structure of the Constitution cannot be amended", Suhrawardy said.

Law Minister Kiren Rijiju wrote to the Chief Justice of India D Y Chandrachud for the inclusion of government nominees in the collegium system. Officials said the law minister has sought the setting up of a "search and evaluation committee" with representation from the central and the state governments in the selection of judges for the Supreme Court and the High Courts respectively.

He was quoted by ANI as saying, "The Constitution Bench had directed to restructure MoP (Memorandum of Procedure) of the collegium system."

In December 2015, the Supreme Court bench said views of the Centre and states should be taken into account and asked the government to prepare a Memorandum of Procedure (MOP) in consultation with the Chief Justice of India to enable transparency in the collegium system of appointment of judges.

It also asked the Centre to take into consideration suggestions on issues of eligibility, transparency, setting up the Secretariat for the appointment of judges, redressal of complaints and other issues in the MOP on the appointment of judges.

Dr Jha said that in case the proposal is approved, then a procedure would have to be laid down to appoint the judges in the Supreme Court and high courts - keeping in view the current scenario where judges are just being "picked and chosen".

She said the government would have to intervene and come up with a legislature, which is a difficult task. She explains, "the Bills and amendments are based on the Constitution and the Constitution can be amended by the legislatures only. Only then, there can be changes in the judicial system also.

However, Suhrawardy opposed any involvement of the government and said, "...we have to trust our judiciary to do the right thing."