Collegium System: Everything You Need to Know

The higher Judiciary in India is known as the WatchDog of the Constitution. Ever wondered how Judges of these constitutional machineries are appointed?

The procedure to appoint Judges are laid down in the Indian Constitution. Though the supreme court judges are appointed by the President, he does so with the consultation of the collegium system.

This article discusses the Collegium System, how it was developed and what all criticism it faces. 

What is collegium system?

Article 124(2) or any other provision in the Indian Constitution does not mention Collegium System. 

The collegium system was developed through the interpretation of Article 124, in particular through two case laws, the "second judges case" and "third judges case," wherein the Supreme Court determined that "consultation" with the CJI in Articles 124(2) and 217(1) regarding the appointment of Judges of the higher judiciary began to be interpreted as vesting primacy with the judiciary.

In the "Third Judges case," the SC ruled that the CJI and the four senior-most Supreme Court judges constitute the Collegium.

Evolution of Collegium System in India

The origin of the collegium system is the three judges case where the Supreme Court through various interpretations of the constitutional provisions invited this process.

The First Judges Case

{S.P. Gupta vs Union Of India (1981)}

• The court held that there was no real support for the chief justice of India's claim to supremacy.

• It was decided that any of the constitutional officials listed in article 217 may make a suggestion for an appointment to a High Court, and not merely the high court's chief justice.

• The constitution bench stated that "consultation" mentioned in articles 124 and 217 was not concurrence.

• It indicates that, despite consulting with these functionaries, the President's choice was not required to be approved by all of them.

• This requirement triumphed in favour of the executive, according to the judgement titled "Balance of Power in Appointments of Judges of High Courts for the Next 12 Years."

The Second Judges Case 

• The judgement in SP Gupta was overturned by a nine-judge Constitution Bench.

• In order to appoint and transfer judges in the higher judiciary, a procedure known as the Collegium System was developed.

• This decision was called for to be reconsidered in the petition submitted by the National Lawyers' Campaign for Judicial Transparency and Reforms.

• The court is supposed to uphold the independence and integrity of the judiciary, according to another claim.

• The CJI was given priority in terms of appointments and transfers according to the majority decision in the Second Judges Case.

• The principal responsibility of the CJI in judicial selections would not be diminished by the term consultation.

• The function of the CJI in judicial selections cannot be decided equally by the executive and the judiciary.

• Because this is a matter within the judicial family, the CJI's role is primordial and the executive cannot have an equal say in it.

• If the executive played an equal role with the courts, there would be more misconduct.

• The executive should typically follow the recommendation that the CJI made after consulting with his two senior-most colleagues.

• If the collegium objects to the suggested name, the executive might request that it be reviewed. The executive must appoint if the collegium reiterates the review recommendation.

The third Judges Case

• The Supreme Court received a Presidential Mention from President K R Narayanan in 1998 over the definition of "consultation" under Article 143 of the Constitution (advisory jurisdiction)

• Whether a consultation could be established by the single view of CJI was the question. In order to form the CJI's opinion, consultation with various judges was necessary.

• The Supreme Court established the following rules to govern how the coram for appointments and transfers operates:

• The recommendation must be made by the CJI and his four senior-most colleagues, not just two.

• Judges of the Supreme Court who served on the High Court that the proposed name was derived from should also be consulted.

• Even if two judges expressed an opinion, the CJI shouldn't convey the advice to the government.

Constitutional Provisions and Procedure

• According to Articles 124 and 217, judges of the Supreme Court of India and High Courts of States are appointed, respectively. Under Articles 224 and 224A, additional judges and acting judges for the High Courts are appointed.

• Article 124(2), which deals particularly with appointments, states that the President shall appoint each Supreme Court Justice following consultation with such Justices of the Supreme Court and of the High Courts in the States as the President may judge necessary.

• According to Article 217(1), the Chief Justice of India, the Governor of the State, and, in the case of the nomination of a judge other than the Chief Justice, the Chief Justice of the High Court, must all be consulted before the President appoints a judge to the High Court.

• The SC concluded in the 2nd Judges Case that the appointment of the CJI shall be made to the senior-most Supreme Court judge deemed qualified to assume the position. The same pattern has been followed ever since.

• Judges other than the Chief Justice of India must be recommended for appointment by the Chief Justice of India after consultation with the Supreme Court's four senior-most judges.

• The President appoints judges of the High Court who are not the Chief Justice after consulting with the Chief Justice of India, other members of the SC Collegium, the Governor of the relevant state, and the High Court Collegium, which is composed of the Chief Justice of the High Court and the four senior-most HC judges.

NJAC Act and Abolition

The National Judicial Appointments Commission Act, 2014 was enacted by Parliament in 2014. (NJAC). The aforementioned law was introduced in an effort to increase transparency in the selection procedure for higher judicial appointments.

According to the Act, two of the SC's most senior judges, the Minister for Law and Justice, and two different individuals would form a collegium with the CJI to form a commission for the appointment, selection, and transfer of judges in the higher judiciary (selected by the CJI, the Leader of the Opposition and the Prime Minister ).

Thus, the Commission consists of members of the judicial system, the executive branch, and prominent or significant figures from society.

Articles 124 and 217 were changed by the Constitution (99th Amendment) Act, and Articles 124A, 124B, and 124C were added.

However the NJAC Act was challenged in the Supreme Court and was struck down in 2015. The Court held that primacy of the judiciary in appointment of judges is included in the basic structure. Appointment of judges is part of the independence of judiciary held that the NJAC violated this independence.

Criticism of Collegium System

Lack of transparency - There is neither a criteria based assessment nor there is an extensive information available about the appointment of judges, making it lose its credibility and legitimacy & makes it susceptible to severe criticism. 

Conflict of Interest- Collegium has been subjected to serious claims of different types of alleged conflict of interest amongst the members of the collegium and the people they chose to become the High Courts and the Supreme Court judges. 

Conclusion

The collegium system although ensures independence of Judiciary but doesn’t provide a clear mechanism for appointment of Higher Judiciary, which is extremely crucial as they are the WatchGuard of the Constitution and thus the said system is assailed for lack of transparency. On one hand, if independence of the Judiciary ensures thus it is utmost important that the current system addresses such loopholes and a stronger system is developed to ensure that people’s faith in the judicial system doesn’t shake.