For Prelims: Chief Justice of India, Collegium System

For Mains: Collegium System Evolution and Criticism

Why in News?

The Supreme Court Collegium system has recently come under fire from the Union Minister of Law and Justice for judges only recommending those they know for appointments or promotions rather than always the best candidates.

The Indian Constitution’s Articles 124(2) and 217 address the appointment of judges to the Supreme Court and High Courts, respectively.

Did the Collegium System Develop and What Does It Encompass?

About

  • Instead of being established by a law passed by the parliament or a clause in the constitution, the system for appointing and transferring judges has developed due to Supreme Court decisions.

The system’s evolution:

  • 1981’s First Judges Case
    • It stated that “cogent reasons” may be given for rejecting the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers.
    • For the ensuing 12 years, the Executive would have priority over the Judiciary in making judicial appointments.
  • 1993’s Second Judges Case
    • With the belief that “consultation” meant “concurrence,” SC established the Collegium system.
    • It was further stated that this was not the CJI’s personal opinion but rather an institutional opinion developed after consultation with the SC’s two most senior judges.
  • (1998) Third Judges Case:
    • The Collegium was increased to a five-member body by the SC on the President’s referral (Article 143), which included the Chief Justice of India and four of his most senior colleagues.

Who Is the System’s Collegium Head?

  • The SC collegium, which consists of the four senior-most judges of the court, is led by the CJI (Chief Justice of India).
  • The current Chief Justice and the two other senior-most judges of the High Court serve as a collegium.
  • Only the collegium system is used to appoint judges of the higher Judiciary, and the government only gets involved after the Collegium has selected names.

What are the Judicial Appointments Processes?

  • In relation to CJI:
    • The CJI and the other SC judges are chosen by the President of India.
    • The departing CJI recommends his successor in terms of the CJI.
    • Since the supersession controversy of the 1970s, seniority has been the sole determining factor in practice.
  • Judges for the SC:
    • The CJI proposes the SC’s other judges.
    • In addition to consulting the other Collegium members, the Chief Justice of India also consults the senior-most judge of the court, a member of the High Court from which the recommended individual is descended.
    • In order for the opinions of the consultees to become a part of the file, they must be recorded in written form.
    • The recommendation is forwarded by the Collegium to the Law Minister, who then sends it to the Prime Minister for the President’s guidance.
  • For the High Courts Chief Justice:
    • According to the practice of appointing Chief Justices from outside the respective States, the High Court’s Chief Justice is chosen.
    • The decision to elevate is made by the Collegium.
    • A Collegium comprises the CJI, and the two most senior judges make recommendations for High Court judges.
    • The initiative for the proposal comes from the departing Chief Justice of the relevant High Court after consulting with her two senior colleagues.
    • The Chief Minister receives the recommendation and advises the Governor to forward it to the Union Law Minister.

What Problems Arise With the Collegium System?

  • Executive exclusion:
    • The complete exclusion of the executive from the judicial appointment procedure led to a system where several judges secretly appointed the remaining judges.
    • Furthermore, they are not subject to any administrative oversight that might result in selecting the incorrect candidate while omitting the appropriate candidate.
  • The likelihood of favoritism and nepotism:
    • There is much room for nepotism and favoritism in the collegium system because there are no specific requirements for screening candidates for the position of CJI.
    • It results in the judicial system becoming less transparent, which is detrimental to maintaining law and order in the nation.
  • In violation of the checks and balances principle:
    • This system violates the check and balance principle. Three organs in India operate sporadically independently but keep each other in check and rein in any organ’s overly zealous abilities.
    • The Judiciary is given enormous power under the collegium system, which leaves few avenues for checks and increases the possibility of abuse.
  • Door-Closing Mechanism:
    • The lack of an official secretariat in this system has been noted by critics. A collegium is believed to meet behind closed doors and makes decisions in secret, with no public knowledge of these details.
    • The Collegium’s proceedings are also not recorded in any official minutes.
  • Unfair Representation
    • The composition of the higher Judiciary, where women are comparatively underrepresented, is the other area of concern.

What initiatives were made to change the appointment system?

  • The court rejected the attempt to replace it with a “National Judicial Appointments Commission” (through the Ninety-ninth Amendment Act, 2014) in 2015 because it endangered the independence of the Judiciary.

Forward Motion

  • There is no deadline for filling vacancies because it is an ongoing process involving the executive and the Judiciary. Nevertheless, it is time to consider creating a long-lasting, independent body to institutionalize the procedure with sufficient safeguards to protect the Judiciary’s independence and guarantee judicial primacy but not judicial exclusivity.
  • It must guarantee independence, reflect diversity, exhibit professionalism, and uphold integrity.