Collegium System in India – The Controversy of Judiciary Transparency vs. Independence

In News: Chief Justice of India NV Ramana recently defended the collegium system of appointing judges, asserting that the selection process “could not be more democratic than this”.

What is the collegium system?

• The Collegium system in India also called “Judges- selecting- Judges”, is the system by which the judges are appointed and transferred only by the judges.
• The system has evolved by means of the judgments of the Supreme Court, and not by an Act of Parliament or by a Constitutional provision.
• The Supreme Court Collegium is headed by the Chief Justice of India and comprises 4 other senior-most judges of the SC.
• A High Court collegium is headed by its Chief Justice and 4 other senior-most judges of that court. Names recommended for appointment by a High Court collegium reach the government only after approval by the CJI and the Supreme Court collegium.
• The government can return the recommendation for reconsideration by Collegium.
• If the collegium reiterates its recommendation then the government is mandated to appoint the respective person.

What was the need for the collegium system?

• The system was introduced for strengthening and improving the appointment process.
• To ensure that CJI’s opinion is not merely his/her individual opinion but an opinion formed collectively by a body of people at the apex level of the judiciary.
• Preserve our democratic system by maintaining the independence of the judiciary as a part of the basic structure and securing rule of law.

How does the collegium system work?

• For appointing Chief Justice of India (CJI):
  • The President of India appoints the CJI and the other SC judges.
  • The outgoing CJI recommends his successor.
  • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
• For appointing other SC Judges:
  • SC judges are recommended by a Collegium consisting of the CJI and 4 senior-most judges of SC.
  • The Collegium recommends the candidate to the Law Minister, who forwards it to the Prime Minister who then advises the President for the final appointment.
• For appointing Chief Justice of High Courts:
  • President appoints CJ of HC in consultation with CJI (consults other SC collegium members) and governor of the respective state.
  • The candidate is selected from outside the respective state.
• For appointing other HC judges:
  • HC judges are also appointed by the President who consults the HC Collegium (CJ of HC and 4 senior-most HC judges), CJI (consults other SC collegium members), and the Governor of the respective state.
• For appointing Judges of Common HC:
  • Judges of common HC are appointed by the President who consults CJI (consults other SC collegium members) and Governors of respective states.

How has the collegium system evolved in India?

Constitution

• The constituent assembly adopted a consultative process of appointing judges to make sure that judges are not affected by political influence.
• It avoided legislative interference as well as providing a veto to the Chief Justice.
• Instead, it vested in the President the power to make appointments and transfer judges between high courts.
• The President (normally act on the advice of the council of ministers) was however needed to consult certain authorities such as the CJI or CJ of the High Court).

First Judges Case, 1981

• The Supreme Court in the First Judges Case, 1981 ruled that the word “Consultation” could not be interpreted to mean “concurrence” = CJI’s opinion is not binding on the executive.
• The Executive could depart from the CJI’s opinion only in exceptional situations and any such decision could be subject to judicial review.

Second Judges Case, 1993

• The SC in Second Judges Case, 1993 overruled its earlier decisions.
• It now held that Consultation meant concurrence and that the CJI’s opinion enjoys supremacy = binding on the executive.
• This decision was justified by the court claiming that the CJI could be the best option to know and assess the worth of candidates.
• However, the CJI has to formulate the opinion only via a body of senior judges that the court described as the ‘collegium’.

Third Judges Case, 1998

• The SC in the third judges case, 1998 clarified that the collegium would consist of
  • CJI and 4 senior-most judges in case of appointments to the Supreme Court.
  • CJI and 2 senior-most judges in case of appointments to the High Court.

About Three Judges Cases (not third)

• Three Judges Cases = First Judges Case 1981 + Second Judges Case 1993 + Third Judges case 1998.
• Over the course of these 3 cases, the court evolved the principle of judicial independence.
• This meant that no other branch of the state (legislature and executive) can interfere with the appointment of judges.
• It is with this principle in mind that the SC introduced the collegium system.

National Judicial Appointments Commission (NJAC)

• The government through the 99^th constitutional amendment wanted to replace the collegium with the NJAC.
• The NJAC comprised of 3 judges of SC, a central law minister, and 2 civil society experts.
• A person would not be recommended by NJAC if any 2 of its members did not accept such a recommendation = making the appointment process more broad-based.
• However, it was struck down by the Supreme Court in 2015 in the Fourth Judges Case.

Fourth Judges Case, 2015

• In the Fourth Judges Case, 2015, the SC upheld the primacy of the collegium by striking down the NJAC law.
• The court’s rationale was that the NJAC law offered politicians equal power in judicial appointments to constitutional courts which is against the provision of “separation of power” under the Basic Structure of the constitution = Ultra Vires of the constitution.
• However, due to the widespread criticisms against the collegium, the judgement promised to consider necessary measures to improve the collegium system. For this purpose, the SC required the government to submit the Memorandum of Procedure (MoP).

Memorandum of Procedure (MoP)

• It is an agreement between the judiciary and the government which contains a set of guidelines for making appointments to the higher judiciary.
• Even though the draft MoP has been sent to the SC by the government, it is stuck between them as certain sections in it are alleged to be of taking away powers of the court to appoint judges.

What are the criticisms against the collegium?

• Unconstitutional and autocratic: ‘Collegium’ is nowhere mentioned in the Constitution and has been evolved by the judiciary itself for retaining the power to select judges by itself.
• Undemocratic: Selection of judges by collegium is undemocratic since judges are not elected by the people and are not accountable to the people or to anyone else.
• Non-transparency and opaque: (No official procedure for selection + lack of a written manual for functioning + selective publication of records of meetings+ no eligibility criteria of judges) = bring opacity in collegium’s functioning.
• Promotes nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles. Thus it encourages mediocrity in the judiciary by excluding talented ones.
• Inefficient: Collegium has not been able to prevent the increasing cases of vacancies of judges and cases in courts.
• Ignores SC’s own guidelines: The recent supersession in appointment is inconsistent with the view of the Supreme Court in the Second Judge’s case, 1993, where it laid that:
  • Seniority amongst Judges in their High Courts and on an all-India basis is significant and should be given due consideration while making appointments from amongst High Court Judges to the Supreme Court.
  • Unless there is any strong reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court.
• Against established conventions: The convention of ‘seniority’ has long been held as the procedure for appointments but ‘supersession’ ignores and abdicates this convention, creating space for subjectivity and individual bias in appointments.
• No reforms were made after the fourth judges case: After striking down the NJAC, the court did nothing to amend the NJAC Act or add safeguards to it that would have made it constitutionally valid. Instead, the court reverted to the old Collegium-based appointments mechanism.

What is the way forward?

The subjectivity and the inconsistency of the collegium system highlight the need to relook at the process of appointment of judges:

• The NJAC needs to be amended to make sure that the judiciary retains independence in its decisions and re-introduced in some form or the other.
• A written manual should be released by the Supreme Court which should be followed during appointments and records of all meetings should be in the public domain in order to ensure transparency and a rule-based process.

Thus, India needs to restore the credibility of the higher judiciary by making the process of appointing judges transparent and democratic. Apart from reforming the collegium system, the quality of judges can also be improved through the implementation of All India Judicial Services (AIJS).

Practice question for mains

Q. “Although Collegium System in India ensures the appointment of competent judges, it is in critical need of course correction” Elaborate.

Updates

• Apr 2022 – Women Representation on Benches:
  • The Supreme Court and High Court judges are appointed in accordance with Articles 124, 217, and 224 of the Indian Constitution, which do not provide reservation for any caste or class of people.
  • In the Collegium system, the Judiciary bears the primary responsibility  for providing social diversity and representation to all sections of society, including SC/ST/OBC/Women/Minorities.
  • Thus the government cannot appoint a High Court Judge who has not been recommended by the High Court Collegium/Supreme Court Collegium.