In this law note, you will learn how judges in India are appointed through the collegium system. This will give you a basic understanding of what the collegiums system is.
The primary objective of this law note is to analyze and evaluate the existing methods for appointing judges, considering their impact on the credibility and autonomy of the judiciary.
The appointment procedure of judges is an important aspect of judicial independence because the personality that ensures fair justice to all must be unbiased and free from any political influence, directly or indirectly. Also, this is an important aspect because the authorities must be fearless while giving judgments and performing their duties effectively.
What Is the Collegium System?
The collegium system is a method of appointing and transferring judges to higher courts in India. This is covered under constitutional law.
Under this system, the Chief Justice of India and a group of senior judges of the Supreme Court and High Courts have the power to make recommendations for the appointment and transfer of judges.
Historical Background of Collegium System in India
There are some nations where the procedure of appointing and transferring judges is different. For some countries, the appointment of judges by the head of state is a common practice. But in India, the appointment of judges to the higher judiciary, including the Supreme Court and the High Courts, follows a procedure that involves both the executive and the judiciary.
The term “collegium” does not appear in the Constitution of India. However, it has been established through judicial pronouncements as a mechanism for appointing and transferring judges in India.
The collegium system was introduced in 1993 by the Supreme Court of India through its judgment in the case of SP Gupta vs Union of India.
The collegium system prioritizes the judiciary in appointing and transferring judges, reducing the involvement of the executive branch in the process. The system involves a group of senior judges, led by the Chief Justice of India, who make recommendations for appointments and transfers based on the qualifications and suitability of the candidates.
The collegium system has also been criticized for lacking transparency and accountability and for being prone to favouritism and nepotism. As a result, in recent years, there have been calls for reforming the collegium system to make it more accountable and transparent.
Evolution of the Collegium System
Before 1993, the President appointed judges in India in consultation with the Chief Justice and two other senior judges of the Supreme Court.
Since 1993, the appointment and transfer of judges in the higher judiciary have been determined by the collegium system, which was created by the Supreme Court. Although the President of India remains the nominal appointing authority, the actual decision-making power now rests with the collegium.
These legal precedents through which this concept emerged and popularly known as “three judges transfer case” are mentioned below:
1. SP Gupta vs Union of India (1981)
The Supreme Court held that the power to transfer High Court judges rests with the central government but in consultation with the Chief Justice of India. The transfer must be based on objective criteria and not influenced by extraneous considerations.
The judgment emphasized the independence of the judiciary and discouraged any interference with its functioning. It had far-reaching implications for the functioning and freedom of the judiciary in India.
2. Supreme Court Advocates-on Record Association vs Union of India (1993)
The Supreme Court held in this case that the power to appoint judges to the higher judiciary rested with the judiciary. The collegium system, consisting of the Chief Justice of India and the four senior-most judges, was established to recommend appointments and transfers of judges.
The executive’s role was limited to providing information and consultation.
The executive could not overrule the collegium’s decision on appointments. The case emphasized the importance of judicial independence and the need for an impartial and competent judiciary.
3. Re Special Reference 1 of 1998
The Supreme Court held in In re Special Reference 1 of 1998 that the President is bound by the advice of the Council of Ministers under Article 74. The Council of Ministers must act collectively and be accountable to the Parliament.
The case clarified the role of the President and emphasised the principle of collective responsibility in the functioning of the executive branch of government in India.
Composition of Collegium
The collegium is a body of senior judges in India responsible for appointing judges to the higher judiciary, including the Supreme Court and High Courts. The composition of the collegium has evolved and is currently made up of the following:
- Chief Justice of India (Chairman of the collegium).
- Five senior-most judges of the Supreme Court.
Together, they form the six-member collegium.
In matters related to appointments, the opinion of the Chief Justice of India is given primacy. Also, the other members of the collegium have a say in the decision-making process.
Process of Appointment
Article 124(2) lays down the appointment procedure. It states that:
“Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in Article 124A and shall hold office until he attains the age of sixty-five years.”
This appointment procedure has been named collegium after the judges-transfer cases.
The appointment procedure through the collegium involves the following steps:
The collegium recommends suitable candidates for appointment as judges to the higher judiciary, including the Supreme Court and High Courts.
The recommendations are then forwarded to the government, which is required to seek the opinion of the Chief Justice of India and other members of the collegium.
After considering the recommendations and opinions of the collegium, the government appoints judges to the higher judiciary.
Criticism of Collegium in India
Collegium has been the sole procedure for the appointment and transfer of judges in India, even though it has been subjected to criticism on the following:
1. Lack of Guidelines for Candidate Selection
The collegium system in India does not provide any guidelines for selecting candidates for the position of judge in the Supreme Court. The process of selection and appointment of judges is not open to public scrutiny, which has led to allegations of nepotism and favouritism.
2. Lack of Criteria for Candidate Testing and Background Investigation
It has been alleged that the collegium system does not have any criteria for testing candidates, nor does it investigate any background of the candidates.
Also, the collegium system is not accountable to any administrative body, which means the members of the collegium system are not answerable for the selection of judges.
3. Burden to Judiciary
With many cases already pending in the court, the limited time given to the collegium system for the appointment of judges would lead to a burden on the judiciary.
4. Violation of the Principle of Check and Balance
The collegium system violates the principle of checks and balances in the Indian government. The Second Judges Case (Supreme Court Advocates-on Record Association vs Union of India (1993)) established the supremacy of the judiciary over the executive, but the collegium system disturbs the principle of check and balance. This principle is necessary to ensure that no organ of democracy is exercising its power excessively.
5. Non-Transparency of the Judicial System
The collegium system leads to a lack of transparency in the Indian judicial system, which is very harmful to the regulation of law and order in the country. It has been alleged that judges are favoured and pre-decided based on their contacts and approach.
Introduction of NJAC
The National Judicial Appointment Commission (NJAC) was a landmark proposal by the Indian government aimed at bringing transparency and accountability to the process of appointing judges to the higher judiciary in India.
The NJAC was proposed through the National Judicial Appointments Commission Bill, 2014, by the then Minister of Law and Justice, Ravi Shankar Prasad, and was passed by both houses of Parliament under the 99th Constitutional Amendment Act, 2014.
The Act proposed a unique composition of the NJAC, comprising members from the legislative, judicial, and civil society, to ensure a balanced and unbiased approach to the appointment of judges.
However, the Supreme Court declared the NJAC unconstitutional in 2015 and upheld the collegium system as the method for the appointment of judges. This has been a significant and controversial issue in the Indian judiciary and has led to discussions on the need for reform in the appointment process of judges in the country.
Composition of NJAC
The proposed composition of the NJAC included the following:
- Chief Justice of India as the Chairman (ex-officio).
- Two most senior judges of the Supreme Court (ex-officio).
- The Union Minister of Law and Justice, and
- Two eminent persons (selected by a committee comprising the Prime Minister, the Chief Justice of India, and the Leader of the Opposition).
The Legal Status of NJAC
The NJAC was declared unconstitutional by the Supreme Court of India in October 2015 in the case of Supreme Court Advocates on Record Association vs Union of India because it violated the basic structure doctrine of the Indian Constitution by diluting the independence of the judiciary.
As a result, the NJAC was never implemented, and the collegium system continues to be the prevailing method for the appointment of judges in India.
What Is the Current Procedure for Judicial Appointments in India?
Article 124 and Article 217 of the Constitution deal with the appointment of judges in India. Since independence, no alternative has been found for the appointment procedure of judges. NJAC was introduced in 2014 but was struck down by the Supreme Court in 2015 and never used as a procedure. Currently, the collegiums system is followed in India for the appointment and transfer of judges. This system is based on seniority and merit.
The collegium system has been the subject of much criticism, with concerns raised about transparency, accountability, etc. The debate on reforming the appointment process is ongoing, with various suggestions and proposals being put forward to address these concerns.
The collegium system has faced challenges in recent years, with allegations of interference by the central government in the appointment process and delays in the appointment of judges. These controversies have highlighted the challenges the judiciary faces in maintaining its independence and impartiality and have underscored the need for transparency and accountability in the appointment process.
Despite these challenges, the collegium system remains an important mechanism for ensuring the appointment of judges to the higher judiciary. The system needs to be reformed and strengthened to ensure greater transparency and accountability and to make sure that the judiciary remains independent and impartial in carrying out its duties.
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