Appointment of Judges in India - The Collegium System

An analayis of how the Collegium System of judiciary operates in India.

 Appointment of Judges in India - The Collegium System

---

• The story: India is one of the few major countries where judges appoint judges, in higher judiciary. The system evolved through the 1980s and 90s, and is called the "Collegium system". It was in news in August 2021 when the new CJI J. NV Ramana succeeded in building consensus in the Collegium for a list of nine names, recommended to the government. It tried ensuring independence, reflect diversity, demonstrate professional competence and integrity.
• The system: Collegium is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution. There were the three judges cases.

1. First Judges Case (1981) - It declared that the “primacy” of the CJIs recommendation on judicial appointments and transfers can be refused for “cogent reasons.” The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
2. Second Judges Case (1993) - The SC introduced the Collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
3. Third Judges Case (1998) The SC on President’s reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues. The SC collegium is headed by the CJI and comprises four other senior most judges of the court. A HC collegium is led by its Chief Justice and four other senior most judges of that court. Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.

• Government's role: 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.
• Background check: The Intelligence Bureau (IB), controlled by the Ministry of Home Affairs, can 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.
• Judicial appointments:

1. Chief Justice of India - The President of India appoints the CJI and the other SC judges. The outgoing CJI recommends his successor. In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
2. SC Judges - For other judges of the SC, the proposal is initiated by the CJI. The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs. The consultees must record their opinions in writing and it should form part of the file. The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
3. Chief Justice of High Courts - The Chief Justice is appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation. High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges. The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues. The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
4. Provisions - (i) Article 124(2) of the Indian Constitution provides that the Judges of the SC are appointed by the President after consultation with such a number of the Judges of the SC and of the High Courts in the States as the President may deem necessary for the purpose. (ii) Article 217 states that the Judge of a High Court shall be appointed by the President in consultation with the CJI, 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.

• Analysis of Collegium system: It is opaque, with a scope for nepotism. It overlooks several talented junior judges and advocates.
• NJAC: The Executive did try from time to time to reform the system. The attempt made to replace the Collegiym by a ‘National Judicial Appointments Commission’ or NJAC (through Ninety-ninth Amendment Act, 2014) was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary. The Chief Justice then was J. JS Khehar.
• Summary: Filling up of vacancies is a continuous and collaborative process involving both the executive and the judiciary. It may be time for a permanent, independent body to institutionalize the process with adequate safeguards. Judiciary’s independence is important, and judicial primacy must exist, but it is not important to ensure judicial exclusivity.
• EXAM QUESTIONS: (1) Explain the evolution of the Collegium System of judicial appointments in India. What led to the SC thinkin in that direction? (2) It is said that 'a weak executive leads to a strong judiciary, and vice-versa'. Do you agree? Critically analyse. (3) The role of the supreme judiciary in ensuring the constitutional values are protected, cannot be over-stated. Explain what exactly is the role.
  

#IndianJudiciary #CollegiumSystem #SC #HC #SupremeCourt #Appointments

Join PT courses | PT Youtube | PT App | Contribute |  Testimonials