Judicial Appointments Conundrum Post-NJAC Verdict

SC Collegium proposes new CJs to 7 High Courts


From UPSC perspective, the following things are important :

Prelims level: Collegium system, NJAC

Mains level: Not Much


Central Idea

  • The Supreme Court Collegium, led by Chief Justice of India D. Y. Chandrachud, has recommended new Chief Justices for seven major High Courts in India.
  • The recommendations focus on criteria such as seniority, regional representation, and gender diversity.

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  • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.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.

Functions of the Collegium

(1) Appointment of CJI

  • The President of India appoints the CJI and other Supreme Court judges.
  • The outgoing CJI recommends his successor, and the appointment is typically made based on seniority, following the controversy of the 1970s.
  • The Union Law Minister forwards the recommendation to the Prime Minister, who then advises the President on the appointment.

(2) Appointment of Other SC Judges

  • The proposal for appointing other judges to the Supreme Court is initiated by the CJI.
  • The CJI consults other members of the Collegium, as well as the senior-most judge from the High Court to which the recommended person belongs.
  • The opinions of the consultees must be recorded in writing and included in the file.
  • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister for the President’s advice.

(3) Appointment of High Court Judges

  • Chief Justices (CJs) of High Courts are appointed based on the policy of having Chief Justices from outside the respective states. The Collegium makes the final decision on their elevation.
  • The appointment of High Court judges is recommended by a Collegium consisting of the CJI and two senior-most judges.
  • The Chief Justice of the High Court concerned initiates the proposal in consultation with two senior-most colleagues.
  • The recommendation is then sent to the Chief Minister, who advises the Governor to forward the proposal to the Union Law Minister.

(4) Transfer Recommendations by the Collegium

  • The Collegium is also responsible for recommending transfers of Chief Justices and other judges.
  • Article 222 of the Constitution allows for the transfer of judges from one High Court to another.
  • When a Chief Justice is transferred, a replacement must be simultaneously appointed for the concerned High Court. An acting Chief Justice can be appointed for a maximum of one month.
  • In transfer matters, the CJI’s opinion is determinative, and the consent of the judge being transferred is not required.
  • However, the CJI should consider the views of the Chief Justice of the concerned High Court and one or more Supreme Court judges who are in a position to provide their opinions.
  • All transfers must be made in the public interest, aiming for the betterment of the administration of justice.


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