Debate over the Collegium System

In News 

Recently, Differences have emerged within the Supreme Court Collegium over appointment of judges to the apex court.

About Collegium System

• The collegium is a group of CJI and the four senior most judges of the Supreme Court that decides on appointments of judges to the apex court.
• These appointments could be in the form of elevation when High Court judges are appointed to the Supreme Court or direct appointments when experienced lawyers may be directly appointed as Supreme Court judges. 
  • The retiring CJI UU Lalit was a direct appointee.

• Origin : The system finds its origins in the three cases called the “Judges cases” in India.

• In the 1981 SP Gupta case, also called the “first judges case”, the judges suggested that the executive must have the biggest say in judicial appointments.
• In 1993, a nine-judge bench in the “second judges case” said that the CJI must be given priority in such appointments.
• This was reiterated in the “third judges case” in 1998. Since then, the judges have been appointed by the collegium system.
  • The Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Criticisms

• The collegium system of appointment and transfer of judges of the higher judiciary has been debated for long, and sometimes blamed for tussles between the judiciary and the executive, and the slow pace of judicial appointments.
• Critics have pointed out that the system is non-transparent, since it does not involve any official mechanism or secretariat.
•  It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria, or even the selection procedure.
•  There is no public knowledge of how and when a collegium meets, and how it takes its decisions. 
• There are no official minutes of collegium proceedings.
• Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.

Governments Stand 

• The Centre has not supported the collegium system. According to the government, the current system is not transparent and is to blame for the high number of vacancies in the higher judiciary.
  • In 2014, the National Judicial Appointments Commission (NJAC) Act was brought in by the NDA government, which would have accorded a major role to the executive in appointing judges to the higher judiciary.
  • But it was struck down by the Supreme Court in 2015, continuing the current Collegium system of judicial appointments. 
    • It said the NJAC was against the basic structure of the Constitution.

Way Ahead 

• The need of the hour is to revisit the existing system through a transparent and participatory procedure, preferably by an independent broad-based constitutional body guaranteeing judicial primacy but not judicial exclusivity.
• The new system should ensure independence, reflect diversity, demonstrate professional competence and integrity. The system needs to establish a body which is independent and objective in the selection process.