Collegium System

The Centre has informed the Supreme Court that it will soon clear five names recommended by the collegium for appointment to the apex court’s bench.

What exactly is the Collegium System?

  • The Indian Supreme Court invented the Collegium of Judges.
  • It is not mentioned in the Constitution, which states that judges of the Supreme Court and High Courts are appointed by the President and mentions a consultation process.
  • In essence, it is a system in which judges are appointed by a judicial institution.
  • Following the appointment of the CJI in the 1970s, and subsequent attempts to effect a mass transfer of High Court judges across the country.
  • As a result, there was a widespread belief that the judiciary’s independence was under threat. As a result, there have been a number of cases over the years.

The Judges’ Cases Have Changed

  • The First Judges Case (1981) ruled that “consultation” with the CJI on appointments must be complete and effective.
  • However, it rejected the notion that the CJI’s opinion, despite its weight, should take precedence.
  • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
  • It went on to say that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the Supreme Court’s two senior-most judges.
  • Judges’ Case No. 3 (1998): In response to a Presidential Referral for its opinion, the Supreme Court expanded the Collegium to a five-member body, comprised of the CJI and four of his senior-most colleagues, in the Third Judges Case (1998).
  • The Collegium’s method of operation

CJI appointment

  • The CJI and the other Supreme Court judges are appointed by the President of India.
  • In terms of the CJI, the outgoing CJI recommends his successor.
  • In practise, it has been strictly by seniority since the 1970s supersession controversy.
  • The recommendation is forwarded by the Union Law Minister to the Prime Minister, who then advises the President.

Other SC Judges

  • The CJI initiates the proposal for other Supreme Court justices.
  • The CJI consults with the rest of the Collegium members, as well as the court’s senior-most judge from the High Court to which the recommended person belongs.
  • The consultees must record their opinions in writing and keep them on file.
  • The recommendation is sent by the Collegium to the Law Minister, who then forwards it to the Prime Minister, who advises the President.

For High Courts

  • High Court Chief Justices are appointed in accordance with the policy of having Chief Justices from outside the respective states. The decision on the elevation is made by the Collegium.
  • A Collegium of the CJI and two senior-most judges recommends High Court judges.
  • The proposal, on the other hand, is initiated by the Chief Justice of the relevant High Court in consultation with two senior-most colleagues.
  • The recommendation is forwarded to the Chief Minister, who advises the Governor to forward it to the Union Law Minister.

Is the Collegium also in favour of transfers?

  • Yes, the Collegium also recommends that Chief Justices and other judges be transferred.
  • Article 222 of the Constitution allows a judge to be transferred from one High Court to another.
  • When a CJ is transferred, a replacement for the High Court concerned must be found at the same time. A High Court may have an acting Chief Justice for no more than one month.
  • In matters of transfers, the CJI’s opinion “is determinative,” and the consent of the judge in question is not required.
  • However, the CJI should consider the views of the Chief Justice of the High Court in question as well as 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”.

Collegium System Is Required

  • The collegium system fosters secrecy: Ruma Pal, a former Supreme Court of India judge, stated that this system is one of the country’s best kept secrets. It is kept secret within the four walls of the body in order for the institution to function properly and effectively, which makes the system opaque.
  • Political non-interference: The collegium system separates the judiciary from politics. It shields the judiciary from the influence of the executive and legislative branches. With the government’s support, the judiciary can function without fear or favour. This ensures that the doctrine of separation of powers is regulated.
  • Ensures worth: In comparison to the CJI, the executive organ is not a specialist or has knowledge of the Judge’s requirements. The collegium system ensures that the most deserving person is appointed to the position of Supreme Court Judge.

Ambiguities in the Collegium system

  • Transparency is lacking: The opaqueness and lack of transparency, as well as the potential for nepotism, are frequently mentioned.
  • The following judges appoint judges: The attempt to replace it with a ‘National Judicial Appointments Commission’ was rejected by the court in 2015, citing a threat to the independence of the judiciary.
  • Criteria: Some oppose full disclosure of transfer reasons because it may make lawyers in the destination court wary of the transferred judge.

A critical evaluation

  • There is no framework for guidelines: This system does not provide any guidelines for selecting candidates for Supreme Court judge positions, which opens the door to nepotism and favouritism.
  • No checks and balances: Because this system gives the Judiciary enormous power to appoint Judges, the check on excessive powers is not ensured, and abuse of power is possible.
  • The judiciary is not held accountable: The collegium system is not held accountable to any administrative body, which may result in the wrong candidate being chosen while the right candidate is overlooked.
  • A heavy workload leaves no room for error: There are already many cases pending in the Court, they have limited time, and the power given to them for the appointment would place a burden on the Judiciary.

Some feasible measures that could be implemented

  • Ensure the presence of non-vetoing representatives: To ensure the effectiveness of this mechanism, the commission should be composed of representatives from the executive, legislature, judiciary, legal profession, and lay people.
  • Public domain information sharing: Furthermore, the commission should use a system that is transparent and open to public scrutiny.

Way forward

  • In terms of appointments, it has been acknowledged that the “zone of consideration” must be broadened in order to avoid criticism that many appointees come from the families of retired judges.
  • The current status of a proposed new memorandum of procedure to increase accountability is also unknown.
  • Even the majority opinions acknowledged the need for transparency; now, Collegium resolutions are posted online, but no explanations are provided.

@the end

  • Because all mechanisms for judicial appointment have advantages and disadvantages, no single system can be considered the best.
  • Despite this, the commission system may be a very effective mechanism for judicial appointment in terms of maintaining public trust in the appointment system and ensuring judicial independence.
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