Reforming the Supreme Court Collegium

Syllabus: GS2/Polity and Governance

Context

• The Supreme Court highlighted concerns over the lack of transparency in the recommendations of the Supreme Court Collegium, warning that unexplained appointments can undermine judicial quality.

Background

• The Supreme Court observed that the Collegium has stopped publishing reasons for recommending candidates for appointment or elevation to the constitutional courts, marking a departure from its earlier practice of issuing reasoned resolutions.
• The court also defended live-streaming of court proceedings while cautioning against the misuse of selectively edited clips that distort judicial proceedings.

Constitutional Provisions Governing Judicial Appointments

• Article 124 provides for the appointment of judges of the Supreme Court by the President after consultation with constitutional authorities.
• Article 217 deals with the appointment of judges of the High Courts.
• Article 222 empowers the President to transfer judges from one High Court to another after consultation with the Chief Justice of India.
• Article 50, a Directive Principle of State Policy, directs the State to separate the judiciary from the executive in the public services of the State, thereby strengthening judicial independence.

What is the Collegium System?

• The Collegium System is the mechanism through which judges of the Supreme Court and High Courts are appointed and transferred by the judiciary itself without any specific constitutional or statutory provision.
• The system evolved through a series of Supreme Court judgments known as the Three Judges Cases, which established the primacy of the judiciary in judicial appointments.
• At the Supreme Court level, the Collegium consists of the Chief Justice of India and the four senior-most judges of the Supreme Court.
• At the High Court level, the Collegium comprises the Chief Justice of the High Court and the two senior-most judges of that High Court.

What is the Memorandum of Procedure (MoP)?

• The MoP is the list of rules and procedures for the appointment of judges to the Supreme Court and the high courts. It is a document framed by the government and the judiciary together.
• The procedure was evolved through three Supreme Court judgments that are popularly known as the three judges cases.
  • These are: SP Gupta v Union of India (1981), Supreme Court Advocates-on-Record Association v Union of India (1993), and In re Special Reference No. 1 of 1998. 
  • After these judgments, the Union government framed an MoP in 1999.
• After the Supreme Court struck down the National Judicial Appointments Commission (NJAC) in 2015, it directed to revise the MoP to improve transparency, accountability and efficiency in judicial appointments.
• However, despite several rounds of consultation, the revised Memorandum of Procedure has not yet been finalised.

Significance of Transparency in Collegium System

• Improves Accountability: Public disclosure of reasons enables scrutiny of judicial appointments.
• Enhances Public Trust: Transparent appointments strengthen confidence in judicial independence.
• Promotes Merit-based Selection: Helps demonstrate that appointments are based on competence, integrity and constitutional values.
• Prevents Arbitrary Decisions: Recording the reasoning helps to minimise the possibility of subjective or opaque decision-making.

Challenges Associated with the Collegium System

• Lack of statutory framework.
• No codified eligibility or evaluation criteria.
• Limited public disclosure of deliberations.
• No formal mechanism for independent review.
• Allegations of opacity and favouritism continue to persist.
• Delays in appointments leading to judicial vacancies.

Way Ahead

• Finalise the new Memorandum of Procedure (MoP) to bring more transparency, objectivity and accountability in judge nominations.
• Collegium recommendations should include short justifications, while protecting legitimately secret information.

Source: TH