Collegium System

In News

• Recently, the Centre cleared nine names, including two from Jammu and Kashmir which were earlier reiterated by the Supreme Court collegium.

Collegium System in India

• History:
  • The Collegium of judges is the Supreme Court’s invention. 
  • No mention in the constitution: It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation. 
• Pertains to:
  • It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.
• Judges appoint judges:
  • In effect, it is a system under which judges are appointed by an institution comprising judges. 
• Cases: 
  • After some judges were superseded in the appointment of the Chief Justice of India in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country, there was a perception that the independence of the judiciary was under threat. 
  • This resulted in a series of cases over the years. 
    • The ‘First Judges Case’ (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective. 
      • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    • The Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”. 
      • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court. 
    • On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
• Articles: 
  • Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.
  • Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.
• Procedure: 
  • The President of India appoints the CJI and the other SC judges. 
  • As far as the CJI is concerned, the outgoing CJI recommends his successor. 
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s. 
    • The Union Law Minister forwards the recommendation to the Prime Minister who, in turn, advises the President. 
  • For other judges of the top court, the proposal is initiated by the CJI. 
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs. 
    • The consultees must record their opinions in writing and it should form part of the file. 
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
  • The Chief Justice of High Courts is appointed as per the policy of having Chief Justices from outside the respective States. 
    • The Collegium takes the call on the elevation.
  • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges. 
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues. 
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
• Collegium on Transfers:
  • The Collegium also recommends the transfer of Chief Justices and other judges. 
  • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another. 
  • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. 
    • There can be an acting CJ in a High Court for not more than a month. In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required. 
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so. 
  • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

Criticism 

• Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
• The mystique of the process, the small base from which the selections were made and the secrecy and confidentiality ensured that the process may on occasions, make wrong appointments and, worse still, lend itself to nepotism.

National Judicial Appointment Commission (NJAC) as rescue but no result

• An attempt to replace collegium by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015.
• The reason stated was that NJAC posed a threat to the independence of the judiciary. 
• Dissenting judge, Justice J. Chelameswar termed it “inherently illegal”. 
• Even the majority opinions admitted the need for transparency. 

Way Ahead

• In respect of appointments, there has been an acknowledgement that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges. 
• The status of a proposed new memorandum of procedure, to infuse greater accountability, should be passed in an expedited way.
• In an effort to boost transparency, the Collegium’s resolutions are now posted online, but reasons are not given.

Source: IE