COLLEGIUM SYSTEM
1. Context
A Meeting of the Supreme Court Collegium, comprising the Chief Justice of India (CJI), and four senior-most judges, which was called for September 30 but did not take place, was closed without further deliberation.
2. Collegium system
It is a system of appointment and transfer for judges of the supreme court and High courts in India. The system has come to prominence through judgments of the supreme court of India. It is neither a statutory nor a constitutional body. The Supreme court collegium is headed by the Chief Justice of India (CJI) and comprises four other senior-most judges of the court.
A high court collegium is led by its chief justice and the four senior-most judges of that court. Names recommended by a high court collegium first get approved by the CJI and the supreme court collegium then only go to the government. Judges of the higher judiciary are appointed only through the collegium system.
3. Evolution of the Collegium system in India
The constitution says a supreme court judge is appointed by the president in consultation with the Chief Justice of India.
3.1 First Judges Case (1981)
In the First Judges case, the court held that the consultation with the CJI should be full and effective.
3.2 Second Judges Case (1993)
The second judge's case introduced the Collegium system in 1993. It ruled that the CJI would have to consult a collegium of his two senior-most judges in the apex court on judicial appointments.
3.3 Third Judges Case (1998)
Supreme court 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.
3.4 National Judicial Appointments Commission (NJAC)
The government through the 99th constitutional amendment wanted to replace the collegium with the NJAC. The NJAC comprised 3 judges of SC, a central law minister, and 2 civil society experts. A person would not be recommended by NJAC if any 2 of its members did not accept such a recommendation making the appointment process more broad-based. However, it was struck down by the supreme court in 2015 in the Fourth judge's case.
3.5 Fourth Judges Case (2015)
In the fourth judge's case, 2015 the SC upheld the primary of the collegium by striking down the NJAC law. The court's rationale was that the NJAC law offered politicians equal power in judicial appointments to constitutional courts which is against the provision of "separation of power" under the Basic structure of the constitution equal to Ultra vires of the constitution.
Thus the SC declared the collegium as part of the constitution's basic structure equal to the power that could not be removed even through a constitutional amendment. However, due to the widespread criticisms against the collegium, the judgment promised to consider necessary measures to improve the collegium system. For this purpose, the SC requires the government to submit the Memorandum of Procedure (MoP).
3.6 Memorandum of Procedure (MoP)
It is an agreement between the judiciary and the government which contains a set of guidelines for making appointments to the highest judiciary.
4. Issues with Collegium System
- Extra-Constitutional or non-constitutional body: Brought in force by judgments of the supreme court
- Opaqueness: Lack of transparency as meetings are held behind closed doors.
- Nepotism:There is a scocpe for Nepotism
- No seat for Non-judge: There is no seat in the Collegium system for any non-judge neither from the executive, the Bar, etc. This violates the principle of checks and balances.
5. Issues from the latest developments
Three questions may have arisen from the development :
- One is whether there ought to be a prescribed mode of decision-making, that is, through personal deliberations or by circulation, or by adopting both means as per convenience.
- The second is whether all members of the Collegium give their opinions in writing, or whether they convey reservations, if any, orally.
- The third related question that arises is whether all decisions ought to be unanimous and consensual. There is a view that a recommendation by the majority, with one or two expressing reservations, may give a good reason for the executive to reject the recommendation or seek reconsideration.
6. The mandate of the Collegium system
- Appointments and transfers of judges in the constitutional courts is a participatory consultative process between the Supreme court and the government. But there is a disturbing pattern of the government unilaterally delaying or segregating names recommended by the supreme court collegium.
- The Three Judges case establishes the primacy of the Collegium, led by the CJI, in making judicial appointments.'Chief Justice of India' here means the collective opinion of the collegium.
- The executive element in the appointment process of judges to senior positions is reduced to the minimum so that any undue influence is eliminated. It was for this reason that the word 'consultation' instead of 'concurrence' was used in the Constitution.
7. Conclusion
India needs to restore the credibility of the higher judiciary by making the process of appointing judges transparent and democratic. Apart from reforming the collegium system, the quality of judges can also be improved through the implementation of All India Judicial Services (AIJS).
For Prelims & Mains
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For Prelims: Collegium system, First Judges Case, Second Judges Case, Third Judges Case, Fourth Judges Case, National Judicial Appointments Commission (NJAC), Memorandum of procedure (MoP)
For Mains: 1. There is a need to establish an open and more transparent mechanism in appointing judges to the higher judiciary in the place of the collegium system, critically examine. (250 words)
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Source: The Hindu
