Every week, the Supreme Court of India hears cases of national importance and sensitive legal matters. But have you ever wondered—who decides which judges will occupy these powerful seats? Who ensures that those responsible for upholding justice are impartial, competent, and fair?
In India, the journey to becoming a judge typically begins at the district court level, where one must clear the judicial services exam. However, the appointment process for High Court and Supreme Court judges follows a different path. Unlike most countries, India is the only nation where judges appoint judges.
This updated blog discusses something that happens only in India—the Collegium System, how it was developed and the criticism it faces.
What is the Collegium System?
The Collegium System is a mechanism for the appointment and transfer of judges that has evolved through landmark Supreme Court judgments rather than being established by any specific constitutional provision or legislative act. It is often referred to as the "Judges-selecting-Judges" system.
This system took firm shape after the 99th Constitutional Amendment (2014), which attempted to introduce the National Judicial Appointments Commission (NJAC). However, the Supreme Court struck down the NJAC as unconstitutional (in the case of Supreme Court Advocates-on-record Association v. UOI (2015)), reaffirming the Collegium's authority in judicial appointments.
Article 124(2) or any other provision in the Indian Constitution does not mention the collegium system.
As per Article 124(1) of the Constitution, the Chief Justice of India (CJI) recommends names for judicial appointments. The Collegium, headed by the CJI and comprising 4 senior-most Supreme Court judges, is responsible for appointing judges to the Supreme Court, with final approval from the President of India. While Articles 124(2) and 217 grant the President the power to appoint judges, this process requires mandatory consultation with the judiciary.
The government's role in judicial appointments is limited and comes into play only after the Collegium finalizes the names. The continued existence of the Collegium System is seen as essential to preserving judicial independence, as it prevents interference from the executive and legislature—two bodies that lack the legal expertise necessary to evaluate candidates for the higher judiciary.
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Evolution of Collegium System in India
The Collegium System originated from a series of landmark rulings known as the "Judges Cases." It was established through the Supreme Court's interpretation of relevant constitutional provisions in these cases. The evolution of the Collegium System can be traced through the following 4 key judgments:
1. S.P. Gupta v UOI (1981): The First Judges Case
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The court held that there was no real support for the chief justice of India's claim to supremacy.
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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.
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The constitution bench stated that "consultation" mentioned in Articles 124 and 217 was not concurrence.
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It indicates that, despite consulting with these functionaries, the President's choice was not required to be approved by all of them.
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This landmark judgment shifted the balance of power towards the executive in the appointment of High Court judges, a system that remained in place for the next 12 years.
2. Supreme Court Advocates-on-Record v UOI (1993): The Second Judges Case
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The judgement in SP Gupta was overturned by a 9-judge Constitution Bench.
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A procedure known as the Collegium System was developed to appoint and transfer judges to the higher judiciary.
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The CJI was given priority in terms of appointments and transfers according to the majority decision in the Second Judges Case.
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The principal responsibility of the CJI in judicial selections would not be diminished by the term consultation.
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The function of the CJI in judicial selections cannot be decided equally by the executive and the judiciary.
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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.
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The executive should typically follow the recommendation that the CJI made after consulting with his 2 senior-most colleagues.
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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.
3. In re Special Reference (1998): The Third Judges Case
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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)
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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.
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The Supreme Court established the following rules to govern how the coram for appointments and transfers operates:
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The recommendation must be made by the CJI and 4 senior-most judges, not just two.
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Judges of the Supreme Court who served on the High Court from which the proposed name was derived should also be consulted.
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Even if 2 judges expressed an unfavourable opinion, the CJI shouldn't convey the advice to the government.
Constitutional Provisions and Procedure
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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.
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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.
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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.
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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.
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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.
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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 to increase transparency in the selection procedure for higher judicial appointments.
According to the Act, 2 of the SC's most senior judges, the Minister for Law and Justice, and 2 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.
The Constitution (99th Amendment) Act changed Articles 124 and 217 and added Articles 124A, 124B, and 124C.
4. Supreme Court Advocates-on-record Association v UOI (2015): The Fourth Judges Case
- In this case the NJAC Act was challenged in the Supreme Court and was struck down in 2015. The Court held that the primacy of the judiciary in the appointment of judges is included in the basic structure. Appointment of judges is part of the independence of the judiciary, and it held that the NJAC violated this independence.
- This verdict restored the Collegium System for appointing judges to the Supreme Court and High Courts.
Criticism of Collegium System
A. Lack of Transparency—Neither a criteria-based assessment nor extensive information about the appointment of judges is available, which makes it lose its credibility and legitimacy and susceptible to severe criticism.
B. Conflict of Interest—The Collegium has been subjected to serious claims of different types of alleged conflict of interest amongst its members and the people they chose to become the High Court and Supreme Court judges.
Conclusion
The collegium system, although ensures the independence of the judiciary but doesn’t provide a clear mechanism for the appointment of the 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 the one hand, if the independence of the Judiciary is ensured thus, it is of utmost importance 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.