Collegium System: Appointment of Judges

In News

• The Supreme Court collegium has recommended nine names to the Centre for appointment as judges in the court. 
• Justice BV Nagarathna, currently a judge in the Karnataka High Court, is in line to become the first woman Chief Justice of India (CJI) in 2027 if the government clears her name for appointment.

Recommendations Made

• The Collegium has for the first time, in one single resolution, recommended three women judges. It has thus sent a strong signal in favour of the representation of women in the highest judiciary.
• It has also continued the recent trend of recommending direct appointments from the Supreme Court Bar to the Bench of the court.
• It has also recommended six judicial officers and a judicial member of the Income Tax Appellate Tribunal for appointment as judges of the Telangana High Court.

What is the Collegium System?

• It is a novel mechanism devised to ensure a democratic system of appointment and transfer of judges
  • It came into existence through Second and  Third Judges Case judgments.
  • Please note: There is no such law or constitutional provision that mentions or defines the collegium system.
• It is headed by the CJI and comprises 4 other senior-most judges of the court.
• An HC collegium is led by its Chief Justice and four other senior-most judges of that court.
• NJAC was thought of as a replacement of the Collegium System but it was invalidated by the Supreme Court.
• Evolution: 
  • The collegium system has its genesis in a series of Supreme Court judgments called the ‘Judges Cases’. 
  • FIRST JUDGES CASE: In S P Gupta Vs Union of India, 1981, the Supreme Court judgment held that consultation does not mean concurrence and it only implies an exchange of views.
  • SECOND JUDGES CASE: In The Supreme Court Advocates-on-Record Association Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
    • The majority verdict in the Second Judges Case accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments.
    • The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
  • THIRD JUDGES CASE: In the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief Justice of India requires ‘consultation of plurality judges’.
    • The sole opinion of the CJI does not constitute the consultation process. 
    • He should consult a collegium of four senior-most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.
    • The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process is not binding on the government.

What are constitutional Provisions Backing it?

• Article 124(2): The Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
• Article 217: The Judge of a High Court shall be appointed by the President in consultation with the CJI and the State Governor, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Role of Government in Judicial Appointment

• The government’s role is limited.
• It can only get an inquiry conducted by the Home Ministry if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
• It 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.

Criticism Against the Collegium System

• Lack of Transparency and Accountability.
• Scope for nepotism.
• Embroilment in public controversies.
• Overlooks several talented junior judges and advocates.

Efforts have been made to address concerns

• The Government appointed Justice M N Venkatachaliah Commission which favoured the change and prescribed a National Judicial Appointments Commission (NJAC) consisting of the
  •  CJI and two senior-most judges
  •  The Law Minister
  • An eminent person from the public, to be chosen by the President in consultation with the CJI.
• In 2014 Government brought the 99th Constitutional Amendment Act, the National Judicial Commission Act (NJAC) to replace the collegium system for the appointment of judges.
  • In 2015, a five-judge Constitution Bench declared them unconstitutional on the ground that they posed a threat to the independence of the judiciary.
  • Bench declared that judges’ appointments shall continue to be made by the collegium system in which the CJI will have “the last word”.

Way Ahead

• This is a time to revisit the Collegium issue, either through a Presidential reference to the Supreme Court, or a constitutional amendment with appropriate changes in the original NJAC law.
• The “thought process” of both the government and Collegium should be modulated and the time frame needed to be fixed for both the Collegium and Ministry to complete the appointment process.
• There should be an institutional basis for considering names from the Supreme Court Bar, rather than considering them on an ad hoc basis. 
  • It should be done as a rule and not as an exception.

Source: TH