APPOINTMENT OF JUDGES IN SUPREME COURT

Much deliberation and mulling has been made   in recent days among the masses and legal fraternity regarding appointment of judges in Apex court as the present system of appointment through collegium is said to be allegedly opaque and is a citadel of nepotism and therefore, smacks of nepotism .People who had unwavering faith in judiciary are even alleging that something seems to be rotten; the way in which judges of various high courts are elevated for this post. It has been facing flak from all corners of society as people are raising fingers; that why we should adhere to this unique system which is all most nonexistent in other parts of the country. To corroborate their allegations they come up with bizarre data which is a pointer that most of these judges have been either kith and kin or offspring of legal leviathans’ .Though to some extent it sounds flimsy and frivolous but is almost true. This may be because candidature for this coveted post requires great exposure and crucial apprenticeship which could be provided only if one is born of legal stalwarts or has been reared up by them. Only legal tycoons with their gray hair can cerebrate that how far it is essential to enjoy this intimacy by virtue of being born in a influential judicial family. Article 124(2) mandates that president in consultation with cji under the advice of union cabinet will make this appointment. It also makes it explicit that under Article 50 all three organs of state namely legislative, executive and judiciary respectively must act independently of one another .However, in a landmark case S. P Gupta versus union of India in 1982 it was hotly mooted that consultation with cji does not necessarily mean concurrence with him (president) and therefore by its prescriptive nature it was not binding one for the president .Needless to say that  this practice was inclined in favor  of executive and grossly undermined supremacy of judiciary which is duly exemplified from the fact that on certain occasions such as in year 1973 seniority of three other judges namely Hegde,Grover and Shelat  was overlooked and a junior judge A.N ROY  was anointed with the coveted post of cji. Same thing was repeated even in Shivkant Shukla Vs ADM Jabalpur case when M.S .BEG was elevated as cji by superseding senior most judge Hans raj Khanna, Who later on tendered his resignation as a mark of protest. Justice Khanna, s audacity to hold aloft standard of judiciary fluttering high in the sky made him a scapegoat in this matter. Those were the days when our judiciary  functioned under the tutelage of executive and failed to act independently and assert its vim and vitality for upholding cause of justice .However, it was in 1993 in a historic case named Advocate on records Vs Union of India a guideline was firmly laid down by supreme court, according to which appointment of judges in S.C will take place through a collegiums system led by cji and two senior most sitting judges of S.C  which was further enhanced to four senior most judges in 1998. This gave teeth to our judiciary and put it on a high pedestal. At Present this scheme constitutes paradigm of collegium system that is in practice. But, it is likely to be substituted by much contentious JAC (judicial appointment commission) through an amendment bill 120. Jac will be comprised of CJI, two senior most judges and law minister along with two eminent members who would again be nominated by a collegium which will incorporate cji,, prime minister and leader of opposition in Lok Sabha. One of the apparent loopholes of JAC is that it is subjected to control and manipulation by parliament by a simple majority that means parliament would be supreme apex body to regulate and supervise its functioning .Future of JAC looks bleak as the chances are quite strong that at the moment it would be brought before S.C for hearing this act would be declared as ultra virus under Article 50 and under  basic unalterable structure of constitution  enshrined in our constitution which clearly states that separation of power in all three organs of government must be observed and should not be flouted. CJI will miss no opportunity to categorically rule out any possibility of executive encroachment.  By examining critically ingredients of this proposed collegium, it is quite apparent that this proposed mechanism is lopsidedly tilted in favor of executive, which will again relegate supremacy of judiciary and that will not auger well for our nation where executive has already earned notoriety for its extra territorial power. As a layman who fails to comprehend abstruseness and nuances of such gray matters, what I propose is not at all a gladiatorial confrontation between judiciary and executive but a mechanism of pan India judiciary competitive examination at par with selection of top bureaucrats. If this system is implemented then obviously much of the controversies encircling appointment of judges in S.C would be halted which will be greatly instrumental in making our judicial system more transparent, trustworthy and vibrant.