This Article is written by Anurag Choudhary student of Delhi University.
The framers of the Constitution had granted Judiciary an independent status. But the appointment of the judges of the High Court and Supreme Court was left to the President, who worked on the advice of the Council of Ministers. Under this situation, initially, the executive wing of the government played an essential role in the appointments, thereby bereaving the Judiciary of its independence. As an alternative, the President could decide to sit over the suggestions made by the Council of Ministers indefinitely. However, such an action would create a situation leading to impeachment. Therefore, before 1973, the President’s power to appoint judges was a mere formality, and the appointments were made on behalf of the executive government. Under the façade of judicial independence, it was the executive taking majority decisions on appointments.
As per the Constitution of India, Judges of the Supreme Court and High Court are appointed by the President under Article 124 (2) and Article 217. If he deems it necessary, the President can ‘consult’ the High Court and Supreme Court judges. However, as is evident, the ‘consultations’ were not binding as that of the executive.
Article 124(2): “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: “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”.
COLLEGIUM SYSTEM AND ITS EVOLUTION
The Collegium system is an arrangement whereby a forum decides appointments, promotions, and transfers of the High Court and the supreme court judges. The forum consists of the Chief Justice of India plus four of the senior-most judges for heading the appointments in the Supreme court. A High Court Collegium is led by its Chief justice and four senior-most judges of that court. Notably, any names recommended by the HC Collegium is sent to the government only after it is approved by the CJI and the SC Collegium. Therefore, the role of the government starts after the names have been decided by the Collegium, thereby limiting the power of the executive. However, in case the government has any objections regarding the names, they can get an inquiry conducted by the Intelligence Bureau. But in case of reassertion of the same names by the Collegium, the government is bound to appoint them as judges.
The Collegium System is not an act of the parliament or a constitutional provision.The system evolved through a series of judgments of the supreme court called the ‘Judges Cases.’
JUDGES TRANSFER CASE I – S.P Gupta v. Union of India
In this case, the President of India concurred on the advice of the Chief Justice of Delhi High Court rather than the advice of CJI and did not extend the term of an additional judge in Delhi High Court. In this case, the advice/recommendations of the Chief Justice of India were refused on a logical basis, and the suggestions made by the Chief Justice of Delhi High Cwas given primacy. In this respect, it was the executive that achieved ascendancy over the Judiciary, and the system remained in place for 12 years.
The court by 4:3 majority was of the opinion that non-extension of the term of an additional judge was valid, and there was no ascendancy of one authority over the other. This Judgment eliminated the slight independence that had developed within the Judicial system whereby the practice of consulting the CJI was instituted.
JUDGES TRANSFER CASE II- Supreme Court Advocates on Record Association v. Union of India
Whether the opinion of the Chief Justice of India reading appointments and transfers of Judges is entitled to primacy was put forth before a nine-member bench of the Supreme Court. This matter was brought before the court through a PIL writ petition which alleged the in competency of the executive in filling the vacancies of the higher judiciary on time. The case took place in 1993 and the Supreme Court introduced a Collegium System. It said that an institutional opinion formed in consultation with the CJI’s and two senior most judge was to be taken in case of appointments and transfers. Moreover, the court held that ‘consultation’ meant ‘concurrence’.
JUDGES TRANSFER CASE III- Re-Presidential Reference (1991)
On the suggestion of the President K.R Narayanthe Supreme Court expanded the Collegium to 5 members instead of three. From 1998 onwards the Collegium included The Chief Justice along with four other senior most judges. A nine-member bench held that the ‘consultation’ meant consultation with a plurality of Judges including the CJI. The sole opinion of the Chief Justice was not taken as the final word. After this the Judiciary ensured its independence in case of appointments and transfers of Judges of High Court and Supreme Court but the same has also been criticized on several grounds.
In recent years the government through the 99th constitutional amendment wanted to replace the Collegium System with the National Judicial Appointments Commission (NJAC). The NJAC comprised three judges of the Supreme Court, the central law minister and two civil society experts. A person’s name will not be put forth if two members of the NJAC disapprove the recommendation. However, this law was struck down by the Supreme Court in the Fourth Judges case, 2015 on the pretext that it offered politicians equal power in judicial appointment and hence was unconstitutional. The basic structure of the Indian Constitution entails ‘separation of power’ and it was getting violated in this case. Collegium is seen as a part of the constitution’s basic structure because it allows the judiciary’s independence in appointments and hence it could not be removed even through a constitutional amendment.
LIMITATIONS OF THE COLLEGIUM SYSTEM
Critics argue that the collegium system has been instituted by the Judiciary for the Judiciary and thus its non-transparency challenges the essence of democracy. Besides, if the judges themselves appoint the judges of the High Court and Supreme Court the system will propagate nepotism and patronage. Also, this system does not provide any guidelines or mechanism for selecting candidates for the concerned position and thus favoritism is inevitable. The forum might appoint a judge in return for favors thereby compromising the neutrality of the Judicial dispensation. As a result, the deserving candidate might not get the position and may always be subject to internal politics. Another drawback of the system is that it failed to address the previous concern of increasing vacancies. Also, it ignores the convention of ‘seniority’ which has always been accepted as the standard procedure for appointments thereby creating space for individual bias.
Furthermore, in recent years, post the striking of NJAC, no amendments or suggestions have been made about the Collegium system in order to make it constitutionally valid. Thus, the Collegium system lacks transparency and neutrality to a considerable extent and reforms seem warranted.
- Collegium System in India, DRISHTI IAS, Jan 28, 2021https://www.drishtiias.com/daily-updates/daily-news-analysis/collegium-system-for-the-appointment-of-judges.
- Deepshikha Garg, Collegium System in India, LEGAL SERVICES INDIA, https://www.drishtiias.com/daily-updates/daily-news-analysis/collegium-system-for-the-appointment-of-judges.
- Re-Presidential Reference AIR 1999 SC 1
- Samarth Luthra, Th Collegium System in India – History, Status Quo and Alternatives, LATEST LAW, Nov 21,2019 https://www.latestlaws.com/articles/the-collegium-system-in-india-history-status-quo-and-alternatives-by-samarth-luthra/.
- P Gupta v. Union of India (1981) AIR 1982 SC 149
- Supreme Court Advocates on Record Association v. Union of India (1993) 4 SCC 441
- Tulika Tandon, What is the Collegium System? Know about appointment of judges in India, JAGRAN JOSH, Jan 29, 2021 https://www.jagranjosh.com/general-knowledge/what-is-collegium-system-know-about-appointment-of-judges-in-india-1611914697-1#:~:text=The%20Collegium%20System%20is%20that,judges%20of%20the%20Supreme%20Court.