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Introduction

The process of appointing judges holds a pivotal role in safeguarding judicial independence and fostering public confidence in the judiciary. In the Indian context, the appointment of judges is primarily governed by Article 124 of the Constitution.

Initially, the appointment process involved the President, with consultation from the Chief Justice of India (CJI) and senior judges. However, the evolution of the Collegium System, despite not being constitutionally mandated, has become the prevalent mechanism for judicial appointments.

About 

• In India, the Collegium System refers to a distinctive mechanism responsible for the selection of new judges and the transfer of incumbent justices within the judiciary. 
• Notably, this system involves a process commonly known as 'judges selecting judges,' where a collegium, comprising senior judges, plays a pivotal role in decision-making.
• The term "Collegium" is not explicitly mentioned in the Constitution but has gained prominence through judicial pronouncements. 
• The concept of the Collegium System began to take shape following recommendations from the Bar Council of India in 1981. 
• The system envisioned the Chief Justice of India, five senior Supreme Court judges, and two representatives from legal bodies, creating a more inclusive and consultative approach.
• Contrary to the broad-based composition initially proposed, the Collegium remained exclusive to judges of the superior courts. 
• The system emphasises the CJI's primacy, with recommendations formed collectively by consulting the four senior-most judges. 
• The Collegium is tasked with submitting recommendations to the President for appointments.
• The Collegium, consisting of senior judges, submits suggestions for the Central Government's selection of judges.
• It may also receive candidates from the government for recommendation.
• The absence of provisions specifying a time limit for the appointment process often results in considerable delays.
• If the Central Government sends the Collegium's report back for further review without modifications, the government must approach the Collegium for approval.

Formation of the Collegium

• Chief Justice of India (CJI)

• The CJI is the head of the Collegium and plays a crucial role in proposing and finalizing recommendations.

• Four Senior-Most Judges

• The next four senior-most judges of the Supreme Court, after the CJI, form the remaining members of the Collegium.
• This group collectively deliberates on and decides judicial appointments and transfers.
  

Composition of Collegiums

• Supreme Court Collegium

1. It is composed of the Chief Justice of India and the four most senior judges of the Supreme Court.
2. Holds authority over the selection and transfer of judges within the Supreme Court.

• High Court Collegium

1. Constituted by the Chief Justice of the respective High Court and the four most senior judges of that High Court.
2. Primarily responsible for recommending candidates for judicial appointments and transfers within the High Court jurisdiction.

Functions of the Collegium

• Appointments to the Supreme Court

• The Collegium plays a pivotal role in the selection of judges for the Supreme Court.
• This involves considering the legal acumen, seniority, and other relevant factors of the candidates.

• Appointments to High Courts

• The Collegium is responsible for recommending candidates for appointment as judges to the various High Courts in India.
• Similar criteria, such as competence and seniority, are taken into account.

• Transfers of Judge

• The Collegium discusses and decides on the transfers of judges between High Courts.
• Considerations may include the judge's expertise, the needs of the judiciary, and administrative requirements.

Operational Process

• Nomination Process
• The High Court Collegium initially proposed names for judicial appointments and transfers.
• The recommendations are then submitted to the Supreme Court Collegium for further scrutiny and approval.
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• Approval and Government of India's Role
• The names endorsed by the Supreme Court Collegium are not forwarded to the Government of India until they receive the joint approval of the Chief Justice of India and the Supreme Court's Collegium.
• The Government of India has the authority to send back the recommendations for reconsideration; however, if the Collegium reiterates its choices, the government is obligated to approve the appointments.

Evolution of the Collegium System in India

The cornerstone of the Collegium System lies in landmark Supreme Court rulings collectively known as the "Three-Judges Cases." Unlike other systems or organizations in India, which are typically established through parliamentary legislation or constitutional provisions, the Collegium System is unique. Its origins can be traced back to the judicial pronouncements that shaped its evolution.

• CJI’s Appointment (1950-73)

• Upon the adoption of the Indian Constitution on January 26, 1950, the Chief Justice of India (CJI) was appointed by the President, and Supreme Court judges were chosen after consulting the CJI.
• A convention was established for the selection of the senior-most Supreme Court justice during this period.
• Instances of deviations from this convention, such as the appointment of Justice AN Ray as CJI in 1973, led to conflicts between the judiciary and executive branches.

• First Judge’s Case (1982)

• In 1982, a petition known as the S.P. Gupta Case or the First Judges Case reached the Supreme Court.
• Key issues included interpreting the term "consultation" in Article 124, which outlines the appointment process.
• The Supreme Court rejected the theory that assumed "concurrence" as the meaning and ruled that the President did not require the Supreme Court's consultation for making appointments.
• The ruling allowed the transfer of High Court justices between state courts, even against their choice.

• Second Judge’s Case (1993)

• In 1993, the Supreme Court Advocates on Record Association (SCARA) filed another appeal.
• The Supreme Court overturned the previous ruling, changing the definition of "consultation" to "concurrence."
• This made it mandatory for the President to consult with the Chief Justice of India before appointing judges.
• The reversal of the earlier decision laid the groundwork for the establishment of the Collegium System.

• Third Judge’s Case (1998)

• The debate over the definition of "consultation" resurfaced in 1998, involving Articles 124, 217, and 222 of the Indian Constitution.
• The Chief Justice of India was no longer the sole participant in the consultation process; a collegium of four of the Supreme Court's most senior judges was introduced.
• The Chief Justice could not offer recommendations to the government in case of a 2-judge disagreement.
• The Collegium System for the appointment of judges was established, incorporating provisions to guide the process.

Advantages of Collegium System

• Secrecy and Independence: Proponents argue that the Collegium System increases secrecy within the judiciary, fostering its independence from political influences. It operates within the four walls of the institution, ensuring effective functioning.
• Independence from Political Influences: The system is seen as a mechanism that separates the judiciary from political influences, allowing judges to work without fear or favor, thus upholding the doctrine of the separation of powers.
• Specialized Selection: The Collegium, consisting of legal experts, is believed to be better equipped to assess the qualifications and suitability of judicial candidates compared to the executive.

Disadvantages of Collegium System

• Lack of Guidelines: Critics contend that the Collegium System lacks clear guidelines for selecting judges, opening the door to nepotism and favoritism. The absence of specific criteria for candidate evaluation raises concerns.
• Transparency Concerns: The system is criticized for its lack of transparency. The decision-making process is often considered opaque, as the public is not privy to the discussions and considerations during the appointment process.
• Non-Accountability: The Collegium is not accountable to any administrative body, and its decisions are not subject to external review. This lack of accountability can lead to potential issues in the selection process.
• Burden on Judiciary: With numerous pending cases, the Collegium may face challenges in efficiently handling the appointment process, potentially burdening the judiciary further.
• Violation of Check and Balance: Some argue that the Collegium System violates the principle of checks and balances, as it grants immense power to the judiciary in the appointment of judges, limiting the checks on its powers.
• Non-Transparent Judicial System: The system's non-transparency is seen as detrimental to the regulation of law and order in the country. A lack of openness in the judicial system can undermine public trust.

Collegium System Criticisms

• Constitutional Basis: Collegium System is not mentioned in the Indian Constitution, and its existence is a result of court decisions (three-judge cases).
• Democratic Deficiency: The process of appointing judges through the Collegium does not follow a democratic process, as judges are not elected by the public.
• Lack of Accountability: There is little to no accountability to the citizens since the Collegium is not subject to transparent elections or external oversight.
• Transparency Issues: Lack of transparency in the selection process, absence of established official guidelines or manuals, and the eligibility criteria for judges not being predetermined.
• Nepotism Concerns: The Collegium system has faced criticism for potential nepotism, where relatives of former judges or experienced solicitors are allegedly favored for top judicial positions.
• Ineffectiveness in Addressing Judicial Vacancies: The Collegium has been criticized for not effectively addressing the increasing number of cases and judicial vacancies, with concerns about inconsistency in adhering to seniority norms.

Recent Developments of Collegium System

Ongoing Collegium System

As of the latest information, the Supreme Court has affirmed the continuity of the Collegium System for judicial appointments. The court emphasized that the existing system needed improvement rather than a complete overhaul. It acknowledged the imperfections in the Collegium and invited suggestions from various stakeholders, including senior lawyers, legal organizations, and the general public.

Suggestions for Improvement

• Inclusion of Women Judges: Advocates stressed the importance of having a mandatory representation of women judges in courts to ensure sensitivity in the judiciary.
• Modified Memorandum of Procedure (MOP): The MOP, guiding the appointment process, should be based on four criteria—transparency, eligibility criteria for judicial appointments, a permanent secretariat to assist the Collegium, and a mechanism for complaints against candidates.
• Role of Government: There were divergent opinions on the role of the government in the appointment process. Some suggested leaving the entire MOP to the government, while others proposed directing the government to frame it.

Rule of Law Convention 2018

The Rule of Law Convention 2018 on Judicial Reform, organized by the Bar Association of India, provided a platform for discussions on various critical topics related to the Indian judiciary. 

Some key points from the convention:-

• Discussion on Collegium System

• Rejection of Abolition: The proposition to completely and unanimously reject the Collegium system of appointments was discussed. However, it was ultimately rejected.
• Role of the Executive: Another proposition suggesting the abolition of the Collegium system and allowing the Executive to play a role in the selection of judges garnered only 14 votes in favor.
• Continuation with Reforms: The proposition advocating the continuation of the Collegium system with significant reforms and changes to enhance transparency and ensure the appointment of the best talent received majority support.

• Suggestions for Improvement

• Timely Judicial Appointments: Emphasis was placed on avoiding delays in judicial appointments, considering it the duty of every organ of the state.
• Background Checks: Concerns were raised about the flawed nature of background checks during appointments, and it was suggested that such checks should not be leaked to create doubts about the integrity of candidates.
• Independent Secretariat: A proposal for a well-resourced independent secretariat for judicial appointments and the creation of a database of eligible candidates to anticipate vacancies for faster judicial remedies.
• Collaboration Between Judiciary and Executive: Calls were made for both the judiciary and the executive to collaborate in the spirit of ensuring speedy appointments while prioritizing national and public interests.

• Statement by Additional Solicitor General, Pinky Anand

• Problem Resolvers as Problem Makers: Pinky Anand highlighted the paradox that those responsible for solving problems in the judicial appointment process often become the source of problems.
• Constitutional Validity and Delivery of Goods: She noted that while institutional credibility is crucial, the Collegium system fails on both constitutional validity and the ability to deliver effective results.
• Call for Bolstering Institutions: Anand emphasized the need to uphold institutional credibility, even if it requires significant reforms or a shift in the existing system.

Government's Efforts 

Over the years, the Indian government has made attempts to introduce reforms in the appointment of judges. In 2003, after a decade of the Collegium's establishment, the National Democratic Alliance government sought to replace it with a National Judicial Commission (NJC). However, political and ideological differences, coupled with the dissolution of the Lok Sabha, led to the lapse of the proposed constitutional amendment.

Comparison with International Models

• Canada: The appointment process involves the federal Minister of Justice appointing special advisers to gather information about potential judges. The Canadian Bar Association National Committee then checks the background of candidates before pronouncing them qualified or not qualified.
• Germany: Judges are elected through a process of election, with half appointed by the executive and half by the legislative.
• USA: Judges of the Supreme Court are nominated by the President and confirmed by the United States Senate.
• UK: A five-member selection commission, consisting of the Supreme Court President, his deputy, and representatives from the Judicial Appointments Commissions of England, Scotland, and Northern Ireland, appoints Supreme Court judges.

Conclusion

The Collegium System, though not constitutionally mandated, has been the predominant mechanism for judicial appointments and transfers in India. Developed through landmark judicial pronouncements, particularly the Three-Judges Cases, the system entails judges selecting judges, with the Chief Justice of India playing a central role. While the Collegium System is praised for preserving judicial independence, its lack of transparency, potential for nepotism, and criticisms of non-accountability have prompted ongoing debates. Recent discussions and the Rule of Law Convention in 2018 have called for reforms rather than abolition, emphasising timely appointments, improved background checks, and collaboration between the judiciary and the executive. Despite government efforts to introduce alternatives, the Collegium System remains, and comparisons with international models highlight the unique nature of India's approach to judicial appointments. The challenge lies in addressing the system's deficiencies to enhance transparency and accountability while maintaining the judiciary's independence.