50th CJI & Collegium System

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    In Context

    • Justice Chandrachud recently said that criticism of the Collegium system must be looked at in a “positive light” and attempts made to improve it. 

    More about the news

    • 50th CJI:
      • The President of India recently administered the oath of office to the 50th Chief Justice of India (CJI) – Justice Chandrachud. 
        • He is the youngest person in the last 10 years to be appointed as the CJI.
    • About the appointment of judges:
      • Issue:
        • The debate relating to the appropriate procedure for the appointment of judges continues to occupy the political space.
        • Recently, the charges were also made by a Minister that the Collegium working is opaque.
      • Opinion of Justice Chandrachud:
        • He opined that there is a legitimate public interest in knowing how judges are appointed but the judiciary also needs to preserve the privacy of the people, members of the Bar or judges of the High Court who are under consideration.
    • His priorities for the judiciary:
      • Justice Chandrachud said the first on the list is filling vacancies, from the district judiciary to High Courts to the Supreme Court. 
      • He also underlined the need to bring in more diversity in the judiciary.

    More about the Collegium System

    • About:
      • 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.
      • There is no such law or constitutional provision that mentions or defines the collegium system.
    • Head: 
      • It is headed by the CJI and comprises 4 other senior-most judges of the court.
    • High Court (HC) Collegium: 
      • An HC collegium is led by its Chief Justice (CJ) and four other senior-most judges of that court.
    • Constitutional Provisions Backing it
      • Article 124(2): 
        • The Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
      • Article 217: 
        • The Judge of a High Court shall be appointed by the President in consultation with the CJI and the State Governor, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.
    • Criticisms:
      • Critics have pointed out that the system is non-transparent, since it does not involve any official mechanism or secretariat.
      • It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria, or even the selection procedure.
      • There is no public knowledge of how and when a collegium meets, and how it takes its decisions. 
        • There are no official minutes of collegium proceedings.
      • Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.

    Governments Stand 

    • The Centre has not supported the collegium system. According to the government, the current system is not transparent and is to blame for the high number of vacancies in the higher judiciary.
      • In 2014, the National Judicial Appointments Commission (NJAC) Act was brought in by the NDA government, which would have accorded a major role to the executive in appointing judges to the higher judiciary.
      • But it was struck down by the Supreme Court in 2015, continuing the current Collegium system of judicial appointments. 
        • It said the NJAC was against the basic structure of the Constitution.

    Evolution of Collegium System

    • The collegium system has its genesis in a series of Supreme Court judgments called the ‘Judges Cases’
    • First Judges Case (1981): 
      • In S P Gupta Vs Union of India, 1981, the Supreme Court judgement held that consultation does not mean concurrence and it only implies an exchange of views.
    • Second Judges Case (1993): 
      • 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 (1998): 
      • In this, the Court opined that the consultation process to be adopted by the CJI 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 CJI without complying with the norms and requirements of the consultation process is not binding on the government.

    Way Ahead

    • Harmony between the three organs of the government (Executive, Legislative and Judiciary) for the growth of the nation is what is required now from a democratic country.
    • This is a time to revisit the Collegium issue, either through a Presidential reference to the Supreme Court, or a constitutional amendment with appropriate changes in the original NJAC law.

    Source: IE