Collegium System

In News

• Recently, the Supreme Court Collegium led by the Chief Justice of India (CJI) has recommended two names for appointment as apex court judges.

Recent Developments

• The Collegium’s success had seen a record nine judges, including three women, sworn in as Supreme Court Justices in 2021. 
  • One of the women judges, Justice B.V. Nagarathna, is in line to be the first woman Chief Justice of India.
• The Collegium had also successfully orchestrated the appointment of 10 new Chief Justices to various High Courts. 
  • It has so far recommended 180 names for appointment as judges of various High Courts.

What is the Collegium System?

• It is a novel mechanism devised to ensure a democratic system of appointment and transfer of judges.
  • It came into existence through Second and Third Judges Case judgments.
  • There is no such law or constitutional provision that mentions or defines the collegium system.
• Head: It is headed by the CJI and comprises 4 other senior-most judges of the court.
• High Court (HC) Collegium: An HC collegium is led by its Chief Justice (CJ) and four other senior-most judges of that court.

Evolution of Collegium System

• The collegium system has its genesis in a series of Supreme Court judgments called the ‘Judges Cases’. 
• First Judges Case (1981): 
  • In S P Gupta Vs Union of India, 1981, the Supreme Court judgement held that consultation does not mean concurrence and it only implies an exchange of views.
• Second Judges Case (1993): 
  • In The Supreme Court Advocates-on-Record Association Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
  • The majority verdict in the Second Judges Case accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments.
  • The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
• Third Judges Case (1998): 
  • In this, the Court opined that the consultation process to be adopted by the CJI requires ‘consultation of plurality judges’.
  • The sole opinion of the CJI does not constitute the consultation process. 
  • He should consult a collegium of four senior-most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.
  • The court held that the recommendation made by the CJI without complying with the norms and requirements of the consultation process is not binding on the government.

Collegium on Transfers

• The Collegium also recommends the transfer of Chief Justices and other judges. 
• Article 222 of the Constitution provides for the transfer of a judge from one High Court to another. 
• When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. 
  • There can be an acting CJ in a High Court for not more than a month. In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required. 
  • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so. 
• All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

Constitutional Provisions Backing it

• Article 124(2): The Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
• Article 217: The Judge of a High Court shall be appointed by the President in consultation with the CJI and the State Governor, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Role of Government in Judicial Appointment

• Limited Role: The government can only get an inquiry conducted by the Home Ministry if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
• Bound to Accept: It can also raise objections and seek clarifications regarding the collegium’s choices. But if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Criticism of the Collegium System

• Lack of Transparency and Accountability.
• Scope for nepotism.
• Embroilment in public controversies.
• Overlooks several talented junior judges and advocates.

Efforts to Replace Collegium System

• The Government appointed Justice M N Venkatachaliah Commission which favoured the change and prescribed a National Judicial Appointments Commission (NJAC) consisting of the:
  •  CJI and two senior-most judges
  •  The Law Minister
  • An eminent person from the public, to be chosen by the President in consultation with the CJI.
• In 2014 Government brought the 99th Constitutional Amendment Act, the National Judicial Commission Act (NJAC) to replace the collegium system for the appointment of judges.
  • In 2015, a five-judge Constitution Bench declared them unconstitutional on the ground that they posed a threat to the independence of the judiciary.
  • Bench declared that judges’ appointments shall continue to be made by the collegium system in which the CJI will have “the last word”.

Way Ahead

• This is a time to revisit the Collegium issue, either through a Presidential reference to the Supreme Court, or a constitutional amendment with appropriate changes in the original NJAC law.
• The “thought process” of both the government and Collegium should be modulated and the time frame needed to be fixed for both the Collegium and Ministry to complete the appointment process.
• There should be an institutional basis for considering names from the Supreme Court Bar, rather than considering them on an ad hoc basis. 

Source: TH