Debate over the collegium system
Source: By The Indian Express
Union Minister for Law and Justice Kiren Rijiju on 17 September 2022 said the collegium system of appointments to the higher judiciary needs to be reconsidered in view of the concerns about the process.
First, what is the collegium system of appointment of judges?
It is the way by which judges of the Supreme Court and High Courts are appointed and transferred. The collegium system is not rooted in the Constitution or a specific law promulgated by Parliament; it has evolved through judgments of the Supreme Court.
The Supreme Court collegium is a five-member body, which is headed by the incumbent Chief Justice of India (CJI) and comprises the four other seniormost judges of the court at that time. A High Court collegium is led by the incumbent Chief Justice and four other seniormost judges of that court. By its very nature, the composition of the collegium keeps changing, and its members serve only for the time they occupy their positions of seniority on the Bench before they retire.
Judges of the higher judiciary are appointed only through the collegium system, and the government has a role only after names have been decided by the collegium. Names that are recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
The role of the government in this entire process is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court. The government can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
Sometimes the government delays making the appointments, especially in cases where the government is perceived to be unhappy with one or more judges recommended for appointment by the collegium. Supreme Court judges have sometimes expressed anguish over such delays.
What does the Constitution say on the appointment of judges in the higher judiciary?
Articles 124(2) and 217 of the Constitution deal with the appointment of judges to the Supreme Court and High Courts. The appointments are made by the President, who is required to hold consultations with “such of the judges of the Supreme Court and of the High Court’s” as he may think is needed. But the Constitution does not lay down any process for making these appointments.
Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
Article 217 says: “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.”
How did the collegium system of appointments evolve?
The collegium system evolved out of a series of judgments of the Supreme Court that are called the “Judges Cases”. The collegium came into being through the interpretations of the relevant provisions of the Constitution that the Supreme Court made in these Judges Cases.
FIRST JUDGES CASE: In ‘SP Gupta Vs Union of India’, 1981, the Supreme Court by a majority judgment held that the concept of primacy of the CJI was not really rooted in the Constitution. It held that the proposal for appointment to a High Court could emanate from any of the constitutional functionaries mentioned in Article 217, and not necessarily from the Chief Justice of the High Court.
The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 did not mean “concurrence” – therefore, although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them.
The judgment in the First Judges Case tilted the balance of power in appointments of judges of High Courts in favour of the executive. This situation prevailed for the next 12 years.
SECOND JUDGES CASE: In ‘The Supreme Court Advocates-on-Record Association Vs Union of India’, 1993, a nine-judge Constitution Bench overturned the decision in ‘SP Gupta’, and devised a specific procedure called the ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary. It was this judgment of the Supreme Court that was sought to be reviewed in the petition filed by the National Lawyers’ Campaign for Judicial Transparency and Reforms, and which was turned down by the court in October 2019 (mentioned above).
THIRD JUDGES CASE: In 1998, then President KR Narayanan issued a Presidential Reference to the Supreme Court under Article 143 of the Constitution (advisory jurisdiction) over the meaning of the term “consultation”. The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.
On what grounds has the collegium system been criticised?
Critics have pointed out that the system is non-transparent, since it does not involve any official mechanism or secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria, or even the selection procedure. There is no public knowledge of how and when a collegium meets, and how it takes its decisions. There are no official minutes of collegium proceedings.
Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.
The collegium system of appointment and transfer of judges of the higher judiciary has been debated for long, and sometimes blamed for tussles between the judiciary and the executive, and the slow pace of judicial appointments.
