Context: Supreme Court of India under D.Y. Chandrachud has taken many initiatives to streamline the collegium system.
Constitutional Provision for Appointment of Judiciary
Art 124(2)
Every Judge of the Supreme Court shall be appointed by the President by warrant executed under his hand and seal, after consultation with such judges of the Supreme Court and the High Courts of the States as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years.
History of Collegium System
The procedure was evolved through three Supreme Court (SC) judgments that are popularly known as the “Three Judges Cases”.
- S.P Gupta Case or First Judges case:
- The Supreme Court discussed 2 major points during the proceedings of this case whether the word “consultation” in the constitutional article 124 mean “concurrence”; Supreme court denied this, saying that Consultation does not mean concurrence under Art 124.
- The President was not bound to appoint a candidate based on the consultation of the Supreme Court.
- Supreme Court Advocates-on-Record Association v Union of India (1993) or Second Judge Case:
- In this case, the Supreme court overruled its earlier verdict and changed the meaning of consultation to concurrence.
- Thus, binding the President of India with the consultations of the Chief justice of India. This resulted in the birth of the Collegium System.
- Third Judges Case or In re Special Reference No. 1 of 1998:
- In the year 1998, the presidential reference to the Supreme court was issued questioning the meaning of the word consultation in articles 124, 217, and 222 of the Constitution.
- The chief justice won’t be the only one as a part of the consultation process. Consultation would include, a plurality of judges, a collegium of 4 senior-most judges of the Supreme court and CJI.
- Even if 2 of the judges are against the opinion, the CJI will not recommend it to the government.
Memorandum of Procedure (MOP)
The MoP is the list of rules and procedures for the appointment of judges to the Supreme Court and the high courts. It is a document framed by the government and the judiciary together.
After the three judgments, it was framed on 30 June 1999. It contains the following:
- All appointments of judges to the Supreme Court must be recommended by the Collegium, composed of the Chief Justice of India and the four senior-most judges of the Supreme Court.
- CJI would take into consideration the views of the senior-most Supreme Court judge who comes from the same high court as the recommended person.
- The recommendation is then sent to the central government. The law minister will forward it to the prime minister, who is to advise the President on the appointment.
- The Government can send back the name of the judge recommended by the collegium for reconsideration only once. If the collegium again sends it back the government has to appoint, the recommended candidate.
- Fair representation shall be given to various High Courts for the selection of Chief Justices. The consideration for appointment of Chief Justices shall be based on the criterion of seniority subject to merit and integrity.
Criticism of the Collegium System
- The informal manner in which the Supreme Court Collegium conducts its business, which allows for biases of nepotism and favouritism to creep in.
- The informality and non-transparency in its dealings, and the non-recording (or non-publication) of minutes of the meetings leads to bias being reflected in the collegium’s recommendations.
- The issue of judges from smaller high courts rarely getting the opportunity to serve at the Supreme Court. As the collegium lacks the representation from these high courts.
- The collegium does not appear to be inclined to ensure diversity of thought and different viewpoints.
- Many critics argued that collegium system deteriorated the balance of Separation of Powers, as Judiciary is appointing himself rather than executive as mentioned in the constitution.
Improvements made in Collegium System
To maintain the transparency and effectiveness of the collegium system, while recommending appointments to the Supreme Court the Collegium has taken into consideration the following aspects:
- The seniority of Chief Justices and senior puisne Judges in their respective parent High Courts as well as overall seniority of the High Court Judges.
- The merit, performance and integrity of the judges under consideration.
- The judgments of the candidate are circulated among the members of the Collegium.
- The Centre for Research & Planning of the Supreme Court also prepares a compilation of “relevant background material to assist the Collegium”.
- The Judgment Evaluation Committee goes through the judicial work of the candidates.
- The judgments are graded, with the very best receiving an “outstanding” grade.
- The need to ensure diversity and inclusion in the Supreme Court.
- The Collegium further explained that “diversity and inclusion” referred to
- The representation of High Courts, which are not represented or are inadequately represented, in the Supreme Court.
- Appointment of persons from marginalised and backward segments of society.
- Gender diversity.
- Representation of minorities.
Global Cases
United Kingdom
- The Judicial Appointments Commission, an independent organisation in the United Kingdom, is in charge of selecting judges for courts and tribunals.
- Three of its 15 members come from the community of judges, while the remaining members, including the chairman, are chosen through an open recruitment process.
United States
- In the United States, the President appoints judges to the federal courts with the Senate’s advice and consent.
South Africa
- In South Africa, the Judicial Service Commission advises the President to choose judges.
National Judicial Appointment Commission (NJAC)
Parliament enacted the 99th Constitutional amendment act to the constitution of India which provide for a National Judicial Appointments Commission (NJAC). The act said that the appointment of judges in Supreme Court and High Courts would be done under the provisions of the NJAC instead of the collegium. A provision was made to make a commission of six people members:
- Chief Justice of India
- Union Law Minister
- The two senior-most justices of the Supreme Court; and
- Two experts
- The selection of the two experts was to be done by a three-member panel consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of the Supreme Court.
In October 2015, the Supreme Court struck down the NJAC Act, terming it a “violation of the basic structure of the Constitution” and compromising the independence of the Judiciary.
