Concerns over the collegium system

Why in the News

The collegium system was built to keep the executive out of choosing judges, yet a former Chief Justice of India (CJI) may have sought the government’s “pre-approval” before the collegium even met. Retired Supreme Court judge Justice Sanjay Kaul has said former CJI D.Y. Chandrachud may have discussed proposed names with the Union Government in advance, which he says erodes the judiciary’s autonomy.

What is the collegium system, and how does it work?

1. What it is: The collegium is a panel of the senior-most judges that selects judges for the higher judiciary. It works like a selection board whose members choose their own future colleagues.
2. Composition: For the Supreme Court, it is the CJI and the four senior-most judges. For High Courts, it is the CJI and the two senior-most judges.
3. Constitutional text: Article 124 says the President appoints Supreme Court judges after consulting the CJI. Article 217 adds the High Court Chief Justice and the State Governor for High Court judges.
4. Memorandum of Procedure: The Memorandum of Procedure (MoP), prepared by the Union Law Ministry in 1998, sets the steps:
   • the collegium proposes names;
   • the Centre may return them with objections;
   • a name the collegium reiterates must be appointed.
5. The takeaway: Once the collegium reiterates a name, the executive’s role is formal, so consulting the government before the collegium meets cuts against the system’s purpose.

How did judges come to appoint judges?

1. Original design: The Constitution required the executive to consult the judiciary, since judges are best placed to assess candidates’ merit. Until the 1980s, the government appointed judges after such consultation.
2. First Judges case (1981): The Supreme Court upheld the primacy of the executive, meaning the government had the final say, because it is accountable to the people.
3. Second Judges case: In 1993 the Court created the collegium to protect judicial independence from political favouritism. The Third Judges case (1998) reaffirmed it.
4. NJAC struck down: The Constitution (Ninety-ninth Amendment) Act, 2014 created a National Judicial Appointments Commission (NJAC) of the CJI, two senior judges, the Law Minister and two eminent persons. The Court struck it down in 2015 for violating the basic structure, the Constitution’s core features that Parliament cannot amend.

What are the collegium’s strengths and weaknesses?

1. Independence secured: The collegium has insulated judicial appointments from the executive.
2. Opacity: It lacks transparency and accountability in how names are chosen.
3. Alleged nepotism: Critics allege that relatives of sitting judges are favoured for appointment to the higher judiciary.
4. MoP still pending: After the NJAC verdict, the government and judiciary agreed to revise the MoP. Differences over the executive’s draft have kept it unfinalised for 11 years.

How do other democracies appoint judges?

1. India’s unique model: No other democracy has a process like India’s collegium, devised by its own Supreme Court.
2. United States: The President nominates federal Supreme Court judges, and the Senate confirms them.
3. United Kingdom: An independent Judicial Appointments Commission (JAC) of 15 commissioners, from the judiciary, the legal profession and the public, selects judges for courts and tribunals. A separate commission, including a JAC member, selects UK Supreme Court judges.
4. South Africa: A Judicial Service Commission of 23 members, from the judiciary, legislature, executive, lawyers and academia, recommends names to the President.

Challenges

1. No objective merit criteria: No standard evaluation of judgment quality guides selection.
2. Executive delays: The government can sit on recommended files, exercising a quiet veto over selection.
3. Ad hoc body: The collegium has no permanent secretariat or staff to vet candidates.
4. Thin diversity: Women hold only about 14% of High Court judgeships.

Way Forward

1. Finalise the MoP: Adopt the revised MoP to bring transparency and wider consultation into appointments.
2. Broader NJAC with judicial veto: Revive a commission including the legislature, the Bar Council and academia, as in South Africa and the UK, with a judicial veto over final names.
3. Publish reasons: Publish the reasons for each selection, so that choices can be scrutinised.
4. Search-cum-evaluation committee: Create a standing committee and secretariat to prepare panels of eligible candidates.

Conclusion

The pre-approval claim shows that keeping the executive out of appointments depends on practice, not only on who sits on the collegium. Whether the revised MoP is finally adopted, or a broader commission is attempted again, is the next decision point.

Matching Previous Year Question

“[2017, GS2, 10 marks] Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.”