A Critical Analysis of the Selection and Appointment of Judges of the Higher Judiciary in India with Special Reference to NJAC and Collegium System

Abstract

In India, the selection and appointment of judges of the higher judiciary has been a vital, delicate, and one of the most debated issues both inside as well as outside the legal fraternity. A collegium system was established to appoint judges of higher judiciary which was criticized of being dictatorial and opaque. To replace the collegium system the parliament created NJAC which was blamed for allowing the executive interference and for prohibiting the judiciary to enjoy absolute independence as a result of which the Act was struck down and the collegium system was reinstated. Delay in the appointment of judges, increased vacancies in the supreme court as well as in high courts, issues in the transfer and elevation of judges, rift between bar and bench and within the bench itself, etc are few of the problems among many which arose as the arguments stretched over the years. Through doctrinal research on the selected title the researcher mainly aims at highlighting issues in methods of both NJAC and the present collegium system and intends to explain that why neither of the two systems should be allowed to select, transfer, elevate and appoint judges. Moreover he wants to discuss in detail the process of selection and appointment of judges both by NJAC and the collegium system. Studying and analyzing the doctrine of separation of powers, independence of judiciary, doctrine of revival, doctrine of basic structure, etc he also aims to focus on important theories and principles upon which these processes were established.