Collegium System

Why in the News?

Recently, the Government has been questioned by the Supreme Court about the delay in clearing Collegium recommendations for judicial appointments to various High Courts.

Probable Question

Institutional Reforms in Judiciary are long overdue while safeguarding its independence. Critically analyze.

Key Points

About Collegium System

• 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 senior-most judges of the court.
• A High Court collegium is led by its Chief Justice and four other senior-most 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.

Evolution of Collegium System

• The collegium system has its genesis in a series of judgments called “Judges Cases”. 
• The collegium came into being through interpretations of pertinent constitutional provisions by the Supreme Court in the Judges Cases.

• First Judges Case (1981): It declared that the “primacy” of the CJI’s 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.
• The Second Judges Case (1993): It 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 Supreme Court.
• Third Judges Case (1998): On a Presidential Reference, the Supreme Court expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Also read: Must Know Articles of the Indian Constitution 

Various Appointments through Collegium

Chief Justice of India (CJI)

• The President of India appoints the CJI and the other SC judges. As far as the CJI is concerned, the outgoing CJI recommends his successor. 
• In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
• The Union Law Minister forwards the recommendation to the Prime Minister who, in turn, advises the President.

Supreme Court Judges

• For other judges of the Supreme court (other than CJI), 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.

Chief Justice of High Court

• The Chief Justice of High Courts 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 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.

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Collegium System & Transfer of Judges

• The Collegium also recommends the transfer of Chief Justices and other judges. 
• Article 222 of the Constitution provides for the transfer of a judge from one High Court to another. 
• In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required. However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.

Role of Government in Collegium System

•  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.

Arguments in favour of Collegium System

•  A simplistic understanding might make the collegium system look rather opaque, especially because only the judiciary has the power to select future judges. 
• However, this is also a way to make the judiciary independent of politics. Having been kept outside of the legislature and executive, the system is believed to keep the selection of future judges free from outside interference.

Criticism of Collegium System

• Critics argue that the system is non-transparent, since it does not involve any official mechanism or secretariat. 
• It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure. 
• There is no public knowledge of how and when a collegium meets, and how it takes its decisions.
  • For example:  Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.

Government Efforts towards Transparency in the appointment of Judges

• Governments, irrespective of which party is in power, have from time to time expressed their reservations about the courts taking upon themselves the power to appoint judges. 
• The present government tried to dilute the primacy of the judiciary by introducing Article 124 (A) by a constitutional amendment, and by enacting National Judicial Appointments Commission Act, 2014. 
• The Supreme Court has struck down both the amendment and the Act. Hence, the judiciary continues to enjoy primacy in the matter of appointments.

Way Forward

• To ensure transparency and accountability, information about the selection of judges through the collegium system may be made accessible to the public under the RTI Act after the appointments are made. 
• It will minimize the scope for favouritism, nepotism, corruption, etc., and facilitate good appointments.

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