Debate over the Collegium System

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    In News 

    Recently, Differences have emerged within the Supreme Court Collegium over appointment of judges to the apex court.

    About Collegium System

    • The collegium is a group of CJI and the four senior most judges of the Supreme Court that decides on appointments of judges to the apex court.
    • These appointments could be in the form of elevation when High Court judges are appointed to the Supreme Court or direct appointments when experienced lawyers may be directly appointed as Supreme Court judges. 
      • The retiring CJI UU Lalit was a direct appointee.
    • Origin : The system finds its origins in the three cases called the “Judges cases” in India.
    • In the 1981 SP Gupta case, also called the “first judges case”, the judges suggested that the executive must have the biggest say in judicial appointments.
    • In 1993, a nine-judge bench in the “second judges case” said that the CJI must be given priority in such appointments.
    • This was reiterated in the “third judges case” in 1998. Since then, the judges have been appointed by the collegium system.
      • The Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    What does the Constitution say on the appointment of judges in the higher judiciary?

    • Articles 124(2) and 217 of the Constitution deal with the appointment of judges to the Supreme Court and High Courts. 
      • The appointments are made by the President, who is required to hold consultations with “such of the judges of the Supreme Court and of the High Courts” as he may think is needed. 
        • But the Constitution does not lay down any process for making these appointments.
    • 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 of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
      • The appointment to the office of the CJI should be of the senior-most judge of the Supreme Court considered fit to hold the office.
    • Article 217 says: “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.”

    Criticisms

    • The collegium system of appointment and transfer of judges of the higher judiciary has been debated for long, and sometimes blamed for tussles between the judiciary and the executive, and the slow pace of judicial appointments.
    • 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.

    Way Ahead 

    • The need of the hour is to revisit the existing system through a transparent and participatory procedure, preferably by an independent broad-based constitutional body guaranteeing judicial primacy but not judicial exclusivity.
    • The new system should ensure independence, reflect diversity, demonstrate professional competence and integrity. The system needs to establish a body which is independent and objective in the selection process. 

    Mains Practice Question 

    [Q] How does the collegium system work?What are the common criticisms made against the Collegium system?