Dr. Dilip Kumar
The collegium system is the method through which the process of appointment and transfer of judges of Supreme Court and High Courts is done. The collegium system has not been provided in the Constitution, nor has it originated from any specific law made by Parliament, rather it has developed over time through various decisions of the Supreme Court.
To improve judicial appointment, Parliament had formed the National Judicial Appointment Commission- NJAC and brought the 99th Constitution (Amendment) Act, but the Supreme Court canceled the Commission and the Amendment Act as unconstitutional.
Since then, there has been a debate on the collegium system of appointment and transfer of high judiciary judges and it has been blamed for the slow pace of judicial appointments along with the struggle between the judiciary and the executive.
What is the collegium system?
The Supreme Court Collegium is a five -member body, headed by the Chief Justice of the outgoing India (CJI), while the four other senior most judges of the Supreme Court are included.
The High Court Collegium is headed by the outgoing Chief Justice of the High Court and two other senior most judges of that court.
The government can object to the choice or selection of the collegium and also ask for clarification, but if the collegium again recommends the same names, then the government is bound to appoint them as judges.
What does the constitution say on the appointment of judges?
Articles 124 (2) of the Constitution and 217 respectively provides for the appointment of judges in the Supreme Court and High Courts. These appointments are made by the President for which he follows the condition of “the Supreme Court and the High Courts of the States, after consulting the President to consult for this purpose”.
But the constitution does not determine any process for these appointments.
How did the collegium system develop?
First Judges Case : SP Gupta vs. Union of India (1981) The Supreme Court in the case admitted the majority decision that the concept of the primacy of the Chief Justice of India is not actually vested in the Constitution.
The Constitution Bench also believed that the word ‘consultation’ used in Articles 124 and 217 does not have a compulsory meaning ‘consent’.
This means that although the President will consult these executives for appointment, his decision was not obliged to be in consent with them all.
Second Judges Case, 1993: In the Supreme Court Advocates-on-record Association vs. India (1993) case, the Constitution Bench of nine-judges overturned the decision of the ‘SP Gupta’ case.
He presented a specific procedure for appointment and transfer of judges in the higher judiciary.
In addition, CJI’s role is fundamental in its nature because it is a subject within the judicial family, but the executive cannot have equal interference rights in this matter.
Third Judges Case, 1998: In the year 1998, the then President KR Narayanan issued a ‘Presidential Reference’ to the Supreme Court under Article 143 (advisory jurisdiction) of the Constitution regarding the meaning of the word ‘counseling’.
The question was whether consultation with many judges in ‘counseling’, which makes the vote of the Chief Justice of India, lies or only CJI’s opinion can be a ‘counseling’ in itself.
The Supreme Court admitted that the CJI and his four senior most colleagues should be recommended.
Major issues related to collegium system:
Exclusion of executive: The complete exclusion of the executive from the judicial appointment process has created a system where some judges appoint other judges in a complete confidential manner.
Apart from this, they are not accountable to any administrative body, due to which the wrong candidate can be selected by ignoring the right candidate.
Possibility of favoritism and nepotism: The collegium system does not provide any specific criteria for the CJI candidate’s testing, due to which it leads to a widespread possibility of favoritism and nepotism.
It gives rise to non-transparency of judicial system, which is extremely harmful for regulation of law and order in the country.
Against the principle of control and balance: This system violates the principle of control and balance. The three organs of the system in India, the legislature, executive and judiciary, are partly functioning independently, but they also control and balance the excessive powers of any organ.
The collegium system gives immense power to the judiciary, which gives very little opportunity for control and poses a risk of misuse.
Close-door mechanism:
Critics have underlined that no official secretariat is involved in this system. It is seen as a ‘close door affair’, where no public information is available about the working of the collegium and the decisioning process.
Apart from this, no official function of the collegium proceedings is also recorded.
Uneven representation: Another area of concern is the structure of the higher judiciary, where women are represented quite low.
Further road map
Between freedom and accountability: The real issue is not who appoint judges (judiciary or executive), rather how they are appointed.
For this, whatever the structure of the Judicial Appointments Commission (JAC), it is important to build a balance between judicial freedom and judicial accountability.
The executive should also have a role in the appointments, but the structure of JAC should be such that it does not compromise judicial freedom.
Justice within the judiciary: It should be taken care to ensure that the institutional imperative of the court remains within the judiciary to provide justice, where there are equality and fixed criteria for the selection of judges.
Reconsideration of establishment of NJAC: The NJAC Act can be amended to include safety measures that will then make it constitutionally valid. In addition, the Judicial Appointments Commission can be restructured in such a way that the majority control remains with the judiciary.
Gender diversity and representative judiciary: No woman in India has been appointed as the Chief Justice of India so far. As women judges, there is a need to maintain and promote gender diversity in the higher judiciary with a certain percentage of their members, which will lead India to the development of the gender-plated judicial system.
Justice B.V. Nagaratna can become the first woman Chief Justice of India in September 2027, which is a welcome step in this direction.
(The author is Associate Professor and Course Coordinator English Journalism, Indian Institute of Mass Communication, Northern Regional Campus, Jammu)
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