Judicial Appointments: A puppet of 'Nepotism' & 'Casteism'? : Justice Rang Nath Pandey wrote a letter to PM Modi. Vaibhav Srivastava LAW CRITIQUE Wed, Jul 03, 2019, at ,12:49 PM Pre-1993, the judges were appointed by the ‘Law Minister’ in ‘consultation’ with the judiciary. Post-1993, there comes the thought of ‘Collegium System’ for the appointment of the judges. Judiciary assumed ‘primacy’ by creating collegiums in Supreme Court & High Courts. High Court judge is appointed after collegiums of judges of that court suggest his/her name, which then has to be cleared by a three-member SC collegium. The 3 judges include the CJI and at least one SC judge who has been associated with that particular HC in the past. SC appointments cleared by 5-members collegium including CJI and 4 other senior most judges. In 2014, the idea of NJAC (National Judicial Appointment Commission) was brought to the table. Proposed judicial commission seeks to make the selection process more transparent. It includes having 6 members, including law minister, CJI, 2 SC judges & 2 ‘eminent persons’. At least 5 members will have to agree on each judge’s appointment. Article 217 of Constitution of India, 1950 says that every HC judge will be appointed by the President after consulting CJI, state’s governor & for a judge other than the CJ, the state’s CJ. In case of SC judges’ appointment, the Article 124(2) says that every SC judges to be appointed by President after consulting judges of SC & HCs as the President deems necessary, in appointing a judge other than the chief justice. CJI must always be consulted. An executive had primacy & role of the judiciary was advisory/consultative, which is non-binding to the final appointment. During the Constituent Assembly debates, framers of the Constitution, several of them emphasized the distinction between ‘Consultation’ & ‘Concurrence’. The requirement to consult the CJI in the appointment is a unique feature of the Constitution. Three cases that triggered the ‘Collegium System’ in Indian Judiciary are in 1982, 1993 & 1998. First Judge Case (1982), the court, of a seven-judge bench, held that the word ‘consultation’ does not mean concurrence & it only implies the exchange of views. Second Judge Case (1993), the court, of a nine-judge bench, reversed its earlier ruling and changed the meaning of the word ‘Consultation’ to ‘Concurrence’. However, it ruled that the advice tendered by the chief justice of India is binding on the President in matters of appointment of judges. Third Judges Case (1998), the Court opined that the consultation process to be adopted by the Chief Justice of India requires ‘Consultation of plurality judges’. On Presidential reference, a nine-judge bench reaffirmed the 1993 judgment, enlarged SC panel 2 judges to 4. This became the Collegium System. The consultation of 4 other judges is binding on CJI. The system drew the charges of ‘Nepotism’. It also ceased the secrecy & transparency in judges’ appointment & transfer. This is how the Judiciary gets greater than Executive on the matter of appointments & transfer of judges of HC’s & SC’s. Hon’ble Mr. Justice Rang Nath Pandey, of Judicature Allahabad High Court at Lucknow Bench, in his letter to Hon’ble Prime Minister Shri. Narendra Modi addresses the fact that Nepotism & Casteism being a hindrance to Judicial Appointments. According to him, “Indian Constitution divides the state into three wings, the executive, the legislative & the judiciary, to which the judiciary also plays an important role…..Government is elected directly by the people, the administrative post is decided on the basis of National examination, in fact, the lower judicial services (PCS- j) is also regulated by the examination process. Why not the High Court or the Supreme Court does so? “Neither the knowledge of law nor the competency of the advocates will elevate them to the bench, but the friendly talk & favorites to collegium system will serve you the elevation. The choice of the elevation in made behind the door with a cup of tea.” wrote Justice Pandey. Justice Pandey also marks on the point for the establishment of ‘NJAC’. The NJAC was the hope in your previous tenure but was struck down by the ‘Supreme Court of India’ by concluding it to a judicial threat. Justice Pandey requested PM, to look into the matter of judicial appointment. He writes, “Hoping to see a day, where a person from a common land has been appointed as the judge, without any political, family or casteism push”