What Is The Collegium System?

The Collegium system is a method used for the selection and relocation of judges in two crucial judicial institutions: the Supreme Court and the High Court.

Origin of the Collegium System: Interestingly, this system does not have its origin in the Constitution. Instead, it has been shaped and developed through various Supreme Court judgments over time.
Role of the Chief Justice in the Collegium System: In this setup, the Chief Justice of India (CJI) plays a significant role. The CJI, together with the four most senior judges of the Supreme Court, is responsible for recommending both the appointment and transfer of judges.
The High Court Collegium: There is also a parallel system within the High Court, known as the High Court Collegium. This is led by the sitting Chief Justice of the particular High Court and the two most senior judges of that court.
Government’s Role in the Collegium System: The government also has a role to play. It can question and seek further clarification on the choices made by the Collegium. However, if the Collegium re-endorses the same individuals, the government is obliged to appoint them to their respective posts.

Constitutional Provisions For Judicial Appointments

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.”
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.”

What Is The Genesis Of The Collegium System For Appointments?

The birth of the collegium system is linked to a succession of Supreme Court rulings known as the “Judges Cases”. The system was crafted through the Supreme Court’s interpretations of the Constitution’s applicable provisions during these cases.

First Judges Case

The ‘SP Gupta Vs Union of India’ case in 1981 is primarily known as the ‘First Judges Case’. The Supreme Court’s majority judgement in this case interpreted the Indian Constitution in a way that diminished the Chief Justice of India’s (CJI) primacy.

Origin of Proposals for High Court Appointments: The Supreme Court ruled that the initiation of appointment proposals to a High Court could come from any of the constitutional authorities mentioned in Article 217. This meant that the proposal did not have to originate solely from the Chief Justice of the High Court.
Interpretation of ‘Consultation’: The Constitution Bench interpreted the term ‘consultation’ used in Articles 124 and 217. They clarified that ‘consultation’ did not equate to ‘concurrence’. This meant that while the President would consult with these authorities, he was not obliged to agree with all of them.
Impact of the First Judges Case: The First Judges Case’s judgement gave the executive more power in appointing High Court judges. This shift in power dynamics remained in effect for the subsequent 12 years.

Second Judge Case

Setting the Stage for the Collegium System: In 1993, the ‘The Supreme Court Advocates-on-Record Association Vs Union of India’ case brought a significant shift in the appointment and transfer of judges in the higher judiciary. This case, ruled by a nine-judge Constitution Bench, overturned the prior decision in ‘SP Gupta’. It introduced a specific procedure, known as the ‘Collegium System’.
A Call for Review: This very ruling was the subject of a review petition filed by the National Lawyers’ Campaign for Judicial Transparency and Reforms. However, the court rejected this request in October 2019.
Preserving Judicial Integrity: The judgement from the Second Judges Case emphasised the Supreme Court’s role in maintaining the judiciary’s integrity and independence. It gave the Chief Justice of India (CJI) greater power in appointments and transfers.
Interpreting ‘Consultation’: The majority verdict interpreted the term “consultation” in the Constitution in a way that would not undermine the CJI’s primary role in judicial appointments.
The Chief Justice’s Role: According to the ruling, the Chief Justice of India (CJI) has a pivotal role, especially in matters internal to the judiciary. In these cases, the executive branch cannot have an equal say. If the executive did have equal influence and disagreed with many proposals, it could potentially lead to disorder within the judicial system.
Introduction of the Collegium System: The Second Judges Case introduced the collegium system, which shifted the power of recommendation. According to this system, the Chief Justice of India, along with his two most senior colleagues, has the authority to make recommendations. These recommendations are usually accepted by the executive.
Executive’s Role in the Appointment: The executive does have the power to request the collegium to reconsider a recommended name. However, if the collegium stands by its recommendation after reconsideration, the executive must proceed with the proposed appointment.

Third Judges Case

In 1998, there was a significant event known as the Third Judges Case. During this period, President KR Narayanan sought clarity on a constitutional point. He asked the Supreme Court to define the term “consultation” as per Article 143 of the Constitution.

Presidential Reference and the Supreme Court’s Response: The core question was whether the Chief Justice of India’s (CJI) sole opinion would be considered a “consultation,” or if this term necessitated multiple judge consultations. The Supreme Court, in response, presented nine guidelines. These guidelines have shaped the current form of the collegium and have been in use since.
Key Changes Brought by the Supreme Court’s Opinion: The Supreme Court stated that the recommendation should come from the CJI and his four senior-most colleagues, instead of the previously mandated two. Consequently, judges from the High Court from which a candidate originates should also be part of the consultation process.
Guidelines on Adverse Opinions: The verdict also clarified that if two judges opposed a candidate, the CJI should not forward the recommendation to the government. This ruling significantly changed the dynamics of judicial appointments and transfers.
National Judicial Appointments Commission (NJAC) Act, 2014: It was introduced as a replacement for the current collegium system used to appoint judges. Nevertheless, a Constitution Bench consisting of five judges deemed it unconstitutional and invalidated it, expressing concerns over its potential impact on the judiciary’s independence.

Why Is The Collegium System Criticised?

The collegium system is often under fire for a variety of reasons. Let’s discuss some of these in more detail below.

Issues of Transparency: One of the major criticisms is the lack of transparency. The reasons behind the collegium’s decisions are not shared with the public, adding an element of mystery and potentially mistrust.
Problem of Judicial Vacancies: Another challenge is the system’s struggle with resolving judicial vacancies. There’s a high number of pending cases due to stagnant vacancies.
Allegations of Favouritism: There are also issues of nepotism and favouritism within the collegium system. An assessment by the Law Commission in 2009 revealed that nepotism was a significant concern.
Violation of Checks and Balances: The collegium system has been accused of violating the checks and balances principle. The executive is completely excluded from the judicial appointment process, leading to questions about accountability.
Underrepresentation of Women: Women are inadequately represented within the judiciary. This issue is particularly evident in the Supreme Court and High Courts.
Judge Transfers: The reasons for the transfer of judges are not made public by the Supreme Court or the government. This lack of transparency could potentially undermine judicial independence.

Transfer Of Judges

Transferring judges is a common practice often facilitated by the Supreme Court Collegium. One reason for this is to groom potential candidates for higher positions, such as the Chief Justice or a seat in the Supreme Court. Potential judges are typically assigned to large high courts to assess their performance.

The Punitive Reason: Another reason for transfers is to deal with judges who have been misbehaving. Constitutionally, the only solution when a judge’s propriety is questioned is impeachment. However, impeachment is a political process that requires a trial by Parliament.
The Challenge of Impeachment: Impeachment is a tough call. It requires high-quality evidence and strong political will, making it a challenging process. Therefore, moving a judge from their original high court has been viewed as an easier alternative for over thirty years.
The Shadow of Opaqueness: However, the transfer process is often opaque, with only a few judges from the Collegium knowing the real reasons. This lack of transparency casts a shadow and raises questions about the process.
The Downside of Opaqueness: While some degree of opaqueness might be necessary for the Collegium system to function, too much of it can harm the institution’s internal health. The Judiciary needs to reflect on this. When questions are raised about the Collegium’s actions, it can undermine public confidence and the trust within the judiciary itself.

Efforts To Streamline Judicial Appointments

Introduction of the 99th Constitutional Amendment Act

The 99th Constitutional Amendment Act, introduced in 2014, proposed the establishment of the National Judicial Commission (NJAC), which was envisioned as a replacement for the traditional collegium system. Despite this initiative, the Constitutional bench rejected the Amendment Act, citing it as an infringement on the independence of the judiciary.

Memorandum of Procedure (MoP)

The Memorandum of Procedure (MoP) is an essential document in the judicial appointment process. Collaboratively created by the government and the judiciary, the MoP establishes the rules and procedures for appointing judges to the Supreme Court and the high courts. The first MoP was framed by the Union government on June 30, 1999.

As per the existing MoP, all Supreme Court judge appointments must be recommended by a specific Collegium. This Collegium comprises the Chief Justice of India and the four most senior judges of the Supreme Court. After their recommendation, it’s forwarded to the central government by the law minister. Subsequently, the prime minister advises the President on the appointment.

The Revised MoP and Ongoing Developments

The Supreme Court, in 2015, directed the central government to draft a revised MoP to promote transparency in the collegium’s proceedings. By 2017, the revised MoP was prepared, but the government did not implement it. The reason given for this was a need for further reconsideration of the matter.

Way Forward for Streamlining Judicial Appointments in India

MoP Reforms: The Memorandum of Procedure (MoP) needs a revamp to streamline judicial appointments. A balanced representation from both executive and judiciary in decision-making can ensure effective checks and balances.
Broadening Eligibility Criteria: The eligibility for judicial appointments should not be restricted to the Constitution’s criteria alone. It should be broadened to incorporate other factors that determine a candidate’s merit and suitability.
Open Applications: The judiciary should invite all eligible candidates to apply for vacancies. This open invitation should require candidates to apply in a prescribed format.
Promoting Diversity: To foster diversity, women must be adequately represented in judicial appointments. This will bring different perspectives to the bench.
Boosting Transparency: Transparency is crucial in the appointment process. Maintaining a list of candidates who have applied, been nominated, or considered by the collegium members is a step in the right direction. All collegium opinions should be exchanged in writing. Further, it’s important to document and record the collegium proceedings in the minutes.

Recommendations By The Law Commission

Balanced Role in Judicial Appointments: The Commission recommends a more balanced role between the judiciary and the executive. This means both should have equal participation in the selection and appointments of judges for the High Courts and the Supreme Court.
Raising Retirement Age of Judges: It proposes an increase in the retirement age for judges. Specifically, it has suggested that Judges of the High Court should retire at 65 years, while those of the Supreme Court at 68 years.
Diversifying Judge Selection Sources: According to Article 124(3), Supreme Court judges can be appointed from three sources. Yet, in the past fifty years, no distinguished jurist has been appointed, and less than half a dozen have been appointed from the Bar. The Law Commission stresses the need to consider these sources and appoint meritorious persons more frequently.