Collegium System in India
Collegiums system in India is the system by which the judges are appointed by the judges only also referred to as “Judges- selecting- Judges”. It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution. The Supreme Court collegium is headed by the Chief Justice of India and comprises four other seniormost judges of the court. A High Court collegium is led by its Chief Justice and four other seniormost judges of that court. Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
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. The government’s role 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. 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.
Constitution on the appointment of Judges:
There is as such no mention of the collegiums system in the original constitution or in the recent amendments. But the Constitution of India lays down certain guidelines as to the reference to the appointment of the judges in the supreme courts and the high courts. The appointment of the judges in the High Courts and the Supreme Courts is done by the President of India and the powers are given to him under Articles 124(2) and 217 of the Indian Constitution. The President is just required to hold consultation with judges of Supreme court and High Court as it may deem necessary.
According to Article 124(2): “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.”
And 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.”
Genesis of Collegium system:
Collegium system has evolved through the series of judgement of “ Judges case”. There were three cases namely:
- S. P. Gupta v. Union of India - 198 (also known as the Judges' Transfer case): it was found that CJI does not have any primacy. The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 was not “concurrence” — meaning that although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them.
- Supreme Court Advocates-on Record Association vs Union of India – 1993: a nine-judge Constitution Bench overruled the decision in S P Gupta and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary. The majority verdict accorded primacy to the CJI in matters of appointment and transfers while also ruling that the the term “consultation” would not diminish the primary role of the CJI in judicial appointments. Ushering in the collegium system, the court said that the recommendation should be made by the CJI in consultation with his two seniormost colleagues, and that such recommendation should normally be given effect to by the executive.
- In re Special Reference 1 of 1998: In 1998, President K R Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution (advisory jurisdiction). 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”. In response, the Supreme Court laid down 9 guidelines for the functioning of the coram for appointments and transfers — this has come to be the present form of the collegium, and has been prevalent ever since. This opinion laid down that the recommendation should be made by the CJI and his four seniormost colleagues, instead of two. It also held that Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted. It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.
This system is criticised because it is considered to be non transparent as there is no official mechanism involved. There are no prescribed norms regarding the eligibility criteria or even selection criteria. The NDA government has tried twice to replace the collegiums system with National Judicial Appointments Commission (NJAC) to address the concerns but failed and the collegium system still prevailing but the parliament has slowed down the process of appointment and is drafting the MoP( Memorandum of Procedure) to guide future appointments so that concerns regarding lack of eligibility criteria and transparency could be redressed.
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