Collegium System


    In News

    • Recently, the Supreme Court collegium has recommended the elevation of Madras High Court Acting Chief Justice (ACJ) Munishwar Nath Bhandari as its Chief Justice.
      • He would take oath after the issuance of a Presidential notification.

    Constitutional Provisions for Appointment of Judges

    • Judges of the Supreme Court and High Courts are appointed by the President under Articles 124(2) and 217 of the Constitution.
      • Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Courts in the States as he may deem necessary.
      • Article 217: “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.”

    What is the Collegium System?

    • It is a novel mechanism devised to ensure a democratic system of appointment and transfer of judges
      • It came into existence through Second and  Third Judges Case judgments.
      • Please note: There is no such law or constitutional provision that mentions or defines the collegium system.
    • It is headed by the CJI and comprises 4 other senior-most judges of the court.
    • An HC collegium is led by its Chief Justice and four other senior-most judges of that court.
    • NJAC was thought of as a replacement of the Collegium System but it was invalidated by the Supreme Court.
    • Evolution: 
      • The collegium system has its genesis in a series of Supreme Court judgments called the ‘Judges Cases’. 
      • FIRST JUDGES CASE: In S P Gupta Vs Union of India, 1981, the Supreme Court judgment held that consultation does not mean concurrence and it only implies an exchange of views.
      • SECOND JUDGES CASE: In The Supreme Court Advocates-on-Record Association Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
        • The majority verdict in the Second Judges Case accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments.
        • The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
      • THIRD JUDGES CASE: In the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief Justice of India requires ‘consultation of plurality judges’.
        • The sole opinion of the CJI does not constitute the consultation process. 
        • He should consult a collegium of four senior-most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.
        • The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process is not binding on the government.

    Role of Government in Judicial Appointment

    • The government’s role is limited.
    • It can only get an inquiry conducted by the Home Ministry if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
    • It can also raise objections and seek clarifications regarding the collegium’s choices.
      • But if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

    Criticism Against the Collegium System

    • Lack of Transparency and Accountability.
    • Scope for nepotism.
    • Embroilment in public controversies.
    • Overlooks several talented junior judges and advocates.

    Efforts have been made to address concerns

    • The Government appointed Justice M N Venkatachaliah Commission which favoured the change and prescribed a National Judicial Appointments Commission (NJAC) consisting of the
      •  CJI and two senior-most judges
      •  The Law Minister
      • An eminent person from the public, to be chosen by the President in consultation with the CJI.
    • In 2014 Government brought the 99th Constitutional Amendment Act, the National Judicial Commission Act (NJAC) to replace the collegium system for the appointment of judges.
      • In 2015, a five-judge Constitution Bench declared them unconstitutional on the ground that they posed a threat to the independence of the judiciary.
      • Bench declared that judges’ appointments shall continue to be made by the collegium system in which the CJI will have “the last word”.

    Way Ahead

    • The controversy over recommendations of the collegium highlights the need for collective leadership and transparent decision making in the Supreme Court. 
    • The “thought process” of both the government and Collegium should be modulated and the time frame needed to be fixed for both the Collegium and Ministry to complete the appointment process.
    • There should be an institutional basis for considering names from the Supreme Court Bar, rather than considering them on an ad hoc basis
      • It should be done as a rule and not as an exception.

    Source: TH