Collegium System for appointment of judges

10 Nov 2022 Collegium System for appointment of judges

Significance for Prelims: Collegium System; Article 124; Article 217; Judges Cases

Significance for Mains: Evolution of the collegium system of appointments; Criticism of the Collegium system:

News: Union Minister for Law and Justice Kiren Rijiju’s s statement that the collegium system of appointments to the higher judiciary needs to be reconsidered reopens longstanding debate over the process of appointing judges to the Supreme Court and High Courts of India 

Constitution on the appointment of judges in the higher judiciary: 

• Articles 124(2) of the constitution deal with the appointment of judges to the Supreme Court. 
• Article  217 of the Constitution deals with the appointment of judges to the High Courts. 
• President may hold consultations with “such of the judges of the Supreme Court and of the High Courts” to make appointments in the higher judiciary as per need.
• But the Constitution is silent on the 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.”

About the Collegium system:

• Method of appointment and transfer of judges of the Supreme Court and High Courts in India is known as the collegium system.
• The collegium system is not based on the constitution or law promulgated by the Parliament. But, it evolved through various judgements of the Supreme Court. 
• Composition of the collegium is constantly changing, and its members only serve for as long as they hold their seniority positions on the Bench before retiring.
• Member and Composition of Supreme Court collegium: The Supreme Court collegium is headed by the incumbent Chief Justice of India (CJI). It consists of five members including the incumbent Chief Justice of India (CJI) and four other seniormost judges of the court at that time. 
• Member and Composition of High Court collegium: It consists of three members led by the incumbent Chief Justice and two other seniormost judges of that court. 

Role of Government in the collegium system:

• The government plays role in the appointment of judges in the higher judiciary only after names have been decided by the collegium. 
• Recommended names for appointment by a High Court collegium reach the government only after approval by the CJI and the Supreme Court collegium.
• Government plays a very minuscule role in the entire process of appointing judges to the higher judiciary: Government directs Intelligence Bureau (IB) to conduct an inquiry in case a lawyer is to be elevated to High Court or the Supreme Court judge. 
• Under Constitution Bench judgments the government can raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound to appoint them as judges.
• But, the Government can delay making the appointments, if it seems unhappy with one or more judges recommended for appointment by the collegium.

Evolution of the collegium system of appointments: Through a series of judgments of the Supreme Court known as “Judges Cases” and the interpretations of the relevant provisions of the Constitution

• First Judges Case or  ‘SP Gupta Vs Union of India’, 1981:  The judgement gave primacy to the executive in appointments of judges of High Courts. The Supreme Court through its majority judgment held that the Constitution did not give primacy to the CJI in the appointment of judges in higher judiciary. The judgement held that “consultation” used in Articles 124 and 217 did not mean “concurrence”. So,  the President’s consultation with these functionaries does not mean his decision is bound to be in concurrence with all of them.
• Second Judges Case or ‘The Supreme Court Advocates-on-Record Association Vs Union of India’, 1993:  A nine-judge Constitution Bench devised a specific procedure called the ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary by overturning the decision in ‘SP Gupta’.  Now, it is the responsibility of the top court to “protect the integrity and guard the independence of the judiciary”. Primacy was given to the CJI in matters of appointment and transfers of judges. In the collegium system, the recommendation should be made by the CJI in consultation with two seniormost judges of the Supreme Court and the executive’s role is to give effect to such recommendations. Second Judges Case added that the executive can raise objections to the name recommended for the appointment of judges and can ask for reconsideration, but if the collegium reiterated the recommendation, the executive was bound to make the appointment.
• Third Judges case: In this SC,  put an end to the question of the meaning of the term “consultation”(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”).In response, Supreme Court laid down that the recommendation should be made by the CJI and his four seniormost colleagues. In case of an adverse opinion between two judges, the CJI should not send the recommendation to the government.

Criticism of the Collegium system:

• Collegium system is non-transparent and closed-door affairs: As it does not involve any official mechanism or secretariat. 
• The system still does not prescribe norms regarding eligibility criteria for the appointment of judges.
• No official minutes of collegium proceedings: People are kept in dark about collegium meetings as they do not have knowledge regarding how and when a collegium meets, and how it takes its decisions. Even lawyers are not aware of when their names have been considered for elevation as a judge.
• It led to tussles between the judiciary and the executive. 
• Lead to the slow pace of judicial appointments. Hence, the large number of judicial vacancies.

Further readings:

1. National Judicial Appointments Commission Act of 2014
2. 99th Constitutional Amendment Act

Source: The Indian Express

Article: Debate over the collegium system: How are SC and HC judges appointed?

Article Link:

https://indianexpress.com/article/explained/debate-over-the-collegium-system-how-are-sc-and-hc-judges-appointed-8158195/ 

Yojna IAS daily current affairs eng med 10th November

sharad