Concerns Over the Collegium System

Syllabus: GS2/Polity and Governance

Context

• A retired SC judge has shared that former CJI may have discussed proposed judicial appointments with the Centre before the collegium met to discuss them, prompting a debate on the evolution of the collegium system.

What is the Collegium System?

• As per process laid down in the Constitution, judges were appointed by the government after consultation with the judiciary till the 1980s.
• 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.

Evolution of the Collegium System

• First Judges Case (1981): The Supreme Court held that the Executive enjoyed primacy in judicial appointments and that the opinion of the Chief Justice of India was not binding.
• Second Judges Case (1993): The Supreme Court reversed its earlier view and held that the Chief Justice of India, acting collectively with senior judges, would have primacy in judicial appointments, thereby creating the Collegium System.
• Third Judges Case (1998): The Supreme Court clarified that the Collegium would consist of the Chief Justice of India and the four senior-most judges of the Supreme Court, thereby institutionalising the current system.

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 collegium initiates the proposal for appointment of judges to the higher judiciary and sends the recommendation to the Central government. 
  • The Centre may return a recommendation in case of any objection or reservation with respect to any of the proposed names. 
  • However, if the collegium reiterates the recommendation, the appointment should be made.
• 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.

Need for 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.
• Delays in appointments leading to judicial vacancies.

International practices

• The collegium procedure for judicial appointments is a unique process that has been devised by the Indian Supreme Court, that has no parallel in any other democracy.
• In the U.S., judges to the Federal Supreme Court are nominated by the President and confirmed by the Senate.
• In the United Kingdom, the independent Judicial Appointments Commission comprises 15 commissioners appointed from the judiciary, the legal profession, and the public. 
• In South Africa, there is a Judicial Service Commission (JSC) that consists of 23 members, including the Chief Justice and representatives from the judiciary, legislature, executive, lawyers and academia.

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