Q13. Discuss the evolution of collegium, advantages and disadvantages of the system of appointment of the Judges of the Supreme Court of India and that of the USA.
Possible Introduction
Definition-based:
The Collegium system is a judicial innovation in India where judges of the Supreme Court and High Courts are appointed and transferred by a panel of senior judges, aimed at preserving judicial independence.
Judicial intro:
The system evolved through judicial interpretation of Articles 124 & 217 of the Constitution, especially via the Three Judges Cases (1981, 1993, 1998).
Comparative:
While India follows a judge-led appointment system, the USA relies on executive nomination with legislative confirmation, reflecting contrasting models of judicial independence and accountability.
Body
1. Evolution of the Collegium System in India
-
- Constitutional Provision (1950): Article 124 – President appoints judges in consultation with CJI; Article 217 – for HC judges.
- 1st Judges Case (S.P. Gupta v. Union of India, 1981): “Consultation” = executive primacy.
- 2nd Judges Case (Advocates-on-Record Association v. Union of India, 1993): “Consultation” = “concurrence” → judicial primacy; Collegium of 5 SC judges created.
- 3rd Judges Case (1998, Presidential Reference): Collegium expanded to 5 (CJI + 4 senior-most SC judges).
- NJAC (99th Amendment, 2014): Attempt to replace Collegium with Judicial–Executive body.
- SC Strikes NJAC (2015): Held unconstitutional, reaffirmed Collegium citing “judicial independence as part of basic structure.”
2. Advantages of the Collegium System
-
- Judicial Independence: Prevents executive interference.
- Insulation from Politics: Appointments not subject to legislative bargaining (unlike US).
- Continuity: Senior judges ensure institutional knowledge and integrity.
- Basic Structure Protection: Judicial control ensures check on majoritarianism.
3. Disadvantages of the Collegium System
-
- Opaque: No formal procedure, lacks transparency in selections.
- No Accountability: Judges appoint themselves — criticised as “judicial oligarchy.”
- Exclusionary: Diversity concerns; underrepresentation of women, SC/ST, minorities.
- Executive–Judiciary Friction: Delays in appointments due to lack of consensus.
- Ignored Talent: Collegium criticised for nepotism and “uncle judge” syndrome.
4. Comparison: India vs USA Judicial Appointments
| Feature | India (Collegium) | USA (Nomination + Senate Confirmation) |
|---|---|---|
| Appointing Authority | Collegium of senior judges (CJI + SC judges) | President nominates, Senate confirms |
| Executive Role | Minimal (President formalises Collegium choice) | Significant (President’s nomination central) |
| Legislative Role | None | Senate Judiciary Committee + Senate vote |
| Transparency | Opaque, informal | Public hearings, open debates |
| Independence | Strong judicial primacy | Possible politicisation of judiciary |
| Accountability | Low (internal, closed system) | High (public scrutiny during hearings) |
Possible Conclusions
Balanced:
The Collegium system has safeguarded judicial independence, but its opacity and insularity demand reform for greater transparency.
Policy-linked:
As the Law Commission and various expert committees suggest, a reformed NJAC-like body with judicial primacy but public accountability may balance independence with transparency.
Philosophical:
Judiciary must not be captive either to the executive (risk of authoritarianism) or to itself (risk of oligarchy); constitutional morality demands balance.
Forward-looking:
For India@2047, judicial appointments must evolve into a system that combines independence, transparency, diversity, and accountability, drawing lessons from both the Indian and US models.
