Type: Prelims Only

Why in the News?

The Union government has said that 219 proposals for the appointment of High Court judges by the Collegium are in various stages of processing.

What is Collegium System?

• The collegium system is the method used for the appointment and transfer of judges in the Supreme Court and High Courts of India.
•  It is the Indian Supreme Court’s invention.
• The term ‘Collegium’ does not find mention in the Constitution.

• Constitutional Provisions:

• • Article 124: The President appoints the Chief Justice and other judges of the Supreme Court after consultations with judges of the Supreme Court and High Courts as deemed necessary.
  • Article 217: The President appoints High Court judges after consultations with the Chief Justice of India, the Governor of the state, and the Chief Justice of the High Court concerned

Composition:

1. Supreme Court Collegium:
   • A five-member body.
   • Headed by the Chief Justice of India (CJI).
   • Includes the four other senior most judges of the Supreme Court at that time.
2. High Court Collegium:
   • Led by the Chief Justice of the respective High Court.
   • Includes the two senior most judges of that High Court.
   • Recommendations for appointments by a High Court collegium are sent to the government only after approval by the CJI and the Supreme Court collegium.

Evolution: Three Judges Cases

• First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
  • The Supreme Court, in a majority decision, held that the opinion of the Chief Justice of India is not binding on the executive in the matter of appointments and transfers of judges. The court ruled that the executive has primacy in judicial appointments.
• Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
  • The Supreme Court, by a majority of 7:2, overruled the First Judges Case and held that the CJI’s opinion regarding judicial appointments and transfers should be given primacy.
  • The court established that the CJI should consult with the two senior-most judges of the Supreme Court before making recommendations for appointments and transfers, thereby creating a collegium system.
• 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.

Qualifications for Appointment as a Supreme Court Judge:

According to Article 124(3) of the Constitution, a person can be appointed as a judge of the Supreme Court if he or she:

• Is a citizen of India.
• Has served as a judge of a High Court for at least five years or in two such courts in succession.
• Alternatively, has been an advocate of a High Court for at least ten years or in two or more such courts in succession.
• Is a distinguished jurist in the opinion of the President.

Qualifications for Appointment as a High Court Judge:

• The person must have held a judicial office for at least 10 years in India, or
• Must have been a practising advocate in a High Court for at least 10 years.
• The person must be enrolled under the Bar Council of India.