Context: Centre seems to be forcing Collegium to recall its recommendations by inaction. I n recalling its recommendation to appoint Justice S. Muralidhar as Chief Justice of the Madras High Court, the Supreme Court collegium has let the Union government, which did not act on the decision for eight months, have its way.
- Collegium system in appointment of judges
- The Collegium System is one where the CJI and a forum of four senior-most judges of the Supreme Court recommend appointment and transfer of judges of higher judiciary.
- The collegium system evolved through three different judgments which are collectively known as the Three Judges Cases.
- First Judges Case - S.P. Gupta vs Union of India (1982) - (In favour of Executive)
- SC held - opinions of Chief Justice of India (CJI) and Chief Justice of respective High Courts were merely “consultative” and the power of appointment resides solely and exclusively with the Central Government.
- Central government “could” override the opinions given by the Judges. Thus, the opinion of Chief Justice of India in matters of appointment was not given primacy in matters of judicial appointments under Article 217(1).
- Second Judges case - S.C advocates on record association vs Union of India (1993) - (Primacy of Judiciary) - (Decided by nine judge constitution bench)
- The Court considered the question of “Primacy of opinion of CJI in regard to appointment of Supreme Court Judges”.
- Referring to ‘Consultative Process’ as envisaged in Article 124(2), SC emphasized that Government does NOT enjoy primacy or absolute discretion in matters of appointment of Supreme Court judges.
- Court said that provision for consultation with Chief Justice was introduced as CJI is best equipped to know and assess the worth and suitability of a candidate and it was also necessary to eliminate political influence.
- SC held that initiation of the proposal for appointment of a Supreme Court Judge must be by the Chief Justice.
- Third Judges case - RE: Presidential reference (Emergence of collegium system)
Supreme Court on a reference made by the President under Article 143 has laid down the following proposition with respect to appointment of Supreme Court judges:
- While making recommendation, CJI shall consult four senior most Judges of Supreme Court. This led to the emergence of present Collegium System.
- The opinion of all members of collegium regarding their recommendation shall be in writing.
- The views of the senior-most Supreme Court Judge who hails from the High Court from where the person recommended comes must be obtained in writing for Collegium’s consideration.
- If majority of the Collegium is against the appointment of a particular person, that person shall not be appointed.
- Even if two of the judges have reservation against appointment of a particular Judge, CJI would not press for such appointment.
- A High Court Judge of outstanding merit can be appointed as Supreme Court Judge regardless of his standing in the seniority list.
- Supreme Court opined that in case of the appointment of high court judges, the chief justice of India should consult a collegium of two senior-most judges of the Supreme Court.
| Merits of Collegium System | Demerits Of Collegium System |
|---|---|
| * Ensures Independence of Judiciary as mandated in Article 50 – from interference of the Executive. | * Lack of transparency and Accountability in the appointment process – The decisions of the Collegium is published on website of Supreme Court but does not reveal: |
| * Views of SC & HC Judges taken in writing. | * methodology or reasons provided for transfer or promotion of judges; |
| * Prevalence Majority favours process appointment. | * ground to select senior lawyers for appointment as Judges of SC or HC. |
| * Reservations of even two Judges of Collegium taken seriously and halts appointment process for doubtful candidates. | * Lack of Consensus among members of Collegium results in delay or even reversal of decisions at times. |
| * Allows talented lawyers from the bar to be appointed as Judges of HC/SC. | * Nepotism – Accusations of favouritism and preferential treatment to members from judicial fraternity. |
| * Nepotism impacting Quality of Judgment - especially in High Courts. | |
| * Politicization of judiciary: Lack of transparency in selection criteria especially for High Courts leads to politically motivated appointments. | |
| * Absence of Permanent Commission: Law Commission’s 121st Report proposed to set up a National Judicial Service Commission for appointment of Judges. Even NCRWC in its 2002 Report highlighted the need for National Judicial Commission for the purpose of appointments to higher judiciary. | |
| * SC declaring NJAC Act and Constitution 99th Amendment as unconstitutional. |
- NJAC Act declared as unconstitutional
- Violation of Basic Structure - Five Judge Bench of Supreme Court [4:1] declared the Constitution 99th Amendment Act and the National Judicial Appointment Commission Act, 2014 as unconstitutional as it violated the Basic Structure of the Indian Constitution.
- Inclusion of Members of Executive - Constitution 99th Amendment introduced Article 124A which provided for the constitution and composition of the National Judicial Appointments Commission (NJAC) which apart from members of Judiciary also included Union Minister of Law & Justice and two Eminent Persons to be appointed by the Central Government.
- Violation of Independence of Judiciary - SC held that Article 124A was insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary as inclusion of members of executed violated independence of judiciary and the aspect of separation of powers. Accordingly, Article 124A (a) to (d) was set aside by the Constitution Bench as being ultra vires.
- Collegium System to Continue - The judgment officially allowed Collegium System for appointment and transfer to continue.
Way forward
Till the time government comes up with legislation for National Judicial Appointment Commission, appointment through Collegium system must be reformed by providing criteria for appointment of judges in the public domain. This will help to improve transparency and accountability in the system of Collegium based appointment for Judges.







