From UPSC perspective, the following things are important :
Prelims level : Collegium system, NJAC
Mains level : Judicial appointment opacity issue
The Centre has told the Supreme Court that it would soon clear five names that were recommended by the collegium for appointment of judges in the apex court.
What is Collegium System?
- The Collegium of judges is the Indian Supreme Court’s invention.
- It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
- In effect, it is a system under which judges are appointed by an institution comprising judges.
- After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
- Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
Evolution: The Judges Cases
- First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
- However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
- Second Judges Case (1993) 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 Supreme Court.
- Third Judges Case (1998): On a Presidential Reference for its opinion, 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.
The procedure followed by the Collegium
Appointment of 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.
- The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.
Other SC Judges
- For other judges of the top court, 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 High Courts
- The CJs of High Courts are 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 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.
Does the Collegium recommend transfers too?
- Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
- Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
- When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
- In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
- However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
- All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.
Need for Collegium System
- Collegium system increases secrecy: Ruma Pal, a former Judge of the Supreme Court of India, stated that this system is one of the best kept secret in the country. It kept secret within the four walls of the body for proper and effective functioning of the institution that makes the system opaque.
- Political non-interference: The collegium system makes Judiciary independent from the politics. It separates the judiciary from the influence of executive and legislative. With the Govt’s influence judiciary can work without any fear and any sort of favour. This ensures the regulation of the doctrine of separation of power.
- Ensures merit: The executive organ is not specialist or does not have the knowledge regarding the requirements of the Judge as comparative to the CJI. Collegium system ensures that the deserving one is sitting in the position of the Judge in Supreme Court.
Loopholes in the Collegium system
- Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
- Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
A critical assessment
- No guidelines framework: This system does not provide any guidelines in selecting the candidates for the judge position of the Supreme Court because of which it leads to wide scope for the nepotism and favoritism.
- No checks and balances: This system gives the immense power to Judiciary to appoint Judges, so the check on the excessive powers would not be ensured and misuse of powers can be done.
- Judiciary is nowhere accountable: The collegium system is not accountable to any administrative body that may lead to wrong choice of the candidate while overlooking the right candidate.
- Huge workload leaves no room: Already there are many cases pending in the Court, they are having limited time the power given to them for the appointment would lead to burden to Judiciary.
|Former Chief Justice of Australia, Sir Harry Gibbs, are worth-quoting:
Judicial commissions, advisory Committees and procedures for consultation [with the Chief Justice] will be useless unless there exists, among the politicians of all parties, a realization that the interest of the community requires that neither political nor personal patronage nor a desire to placate any section of a society, should play any part in making judicial appointments.
Some feasible measures that can be incorporated
- Ensure non-vetoing representatives: To ensure the effectiveness of this mechanism the commission should be representative in nature comprising members of the executive, legislature, judiciary, legal profession and lay persons.
- Info share in public domain: In addition, it should be ensured that the commission uses a system which is transparent and open to public scrutiny.
- In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
- The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
- Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.
- All mechanisms for judicial appointment may have some advantages and disadvantages and therefore, no particular system can be treated as the best system.
- Despite this, in order to maintain public confidence in the appointment system and to ensure judicial independence the commission system is perhaps a very effective mechanism for judicial appointment.
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