Collegium System for the Appointment of Judges

• 12 May 2022

For Prelims: Collegium System, Chief Justice of India.

For Mains: Evolution of the Collegium System and its Criticism.

Why in News?

The Supreme Court collegium has made recommendations to five new Chief Justices of high courts.

What is a Collegium System and How Did It Evolve?

• It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court (SC), and not by an Act of Parliament or by a provision of the Constitution.
• Evolution of the System:
  • First Judges Case (1981):
    • It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
    • The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
  • Second Judges Case (1993):
    • SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
  • Third Judges Case (1998):
    • SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Who Heads the Collegium System?

• The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior most judges of the court.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.

What are the Procedures for Judicial Appointments?

• For CJI:
  • The President of India appoints the CJI and the other SC judges.
  • As far as the CJI is concerned, the outgoing CJI recommends his successor.
  • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
• For SC Judges:
  • For other judges of the SC, the proposal is initiated by the CJI.
  • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
  • The consultees must record their opinions in writing and it should form part of the file.
  • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
• For Chief Justice of High Courts:
  • The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States.
  • The Collegium takes the call on the elevation.
  • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
  • The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
  • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

What is Critical about the Collegium System?

• Opaqueness and a lack of transparency.
• Scope for nepotism.
• Embroilment in public controversies.
• Overlooks several talented junior judges and advocates.

What were Attempts to reform the Appointment System?

• The attempt made to replace it by a ‘National Judicial Appointments Commission’ (through Ninety-ninth Amendment Act, 2014) was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Way Forward

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalise the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity.

Source: IE