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Content

• Background
• Two Phases in Judicial Appointment Procedure
• Evolution of Collegium System
• What is the role of government in the current appointment process?
• Steps that can be further taken to improve collegium system

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Background

• Constitutional Provisions
  • Article 124(2) reads “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted”.
  • Article 217(1) reads “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, 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”.
• Idea behind the constitutional provisions
  • Check politically motivated appointment
  • BR Ambedkar in CA -> consultation didn’t mean veto as it will result in unrestricted power in a single person.
  • Thus, a careful inter-institutional equilibrium was envisaged in CA.

Two Phases in Judicial Appointment Procedure

i. Phase of Executive Led Appointment (1950-1993)

• In this phase it was not mandatory for the President to follow the recommendation of CJI and other judges.
• Criticism of this method:
  • 14th report of LCI raised concern on the constitutional envisaged system of appointment that the role of executive, especially in the state, was leading to the erosion of the independence of judiciary.
    • This was perhaps the beginning of belief that the judiciary itself, through its representatives was best placed to decide on its own composition, and thereby secure judicial independence.

ii. Phase of Collegium Mode of Appointment (1993-present)

• After the 2nd Judges case in 1993, the recommendation of the CJI along with other senior judges of the Supreme court became mandatory.

Evolution of Collegium System (Various Supreme Court Judgments)

• What is collegium System? – It is a system for appointment of judges in higher judiciary and transfer of judges between high courts. It is not a result of constitutional provision or a statutory provision and came into existence through the series of judgements called the “Judges cases”. Since 1993, the collegium system has been followed for the appointment of judges in the Supreme Court and High Courts.

1. Sankalchand Sheth’s case, 1977: Here the Supreme court held that the term ‘consultation’ can never mean concurrence. Hence the CJI’s opinion was not binding on the executive.
2. First Judges Case (SP Gupta vs Union of India), 1981, the court repeated the above interpretation that consultation didn’t mean concurrence. It also held that concept of primacy of the CJI was not really to be found in the constitution.
3. Second Judges Case (The Supreme Court Advocates-on-Record Associations vs Union of India) , 1993, the a nine judge constitutional bench of Supreme Court overruled its earlier decisions. It held that consultation really mean concurrence and CJI’s view enjoys primacy, since he is best equipped to know and assess the worth of candidates. But the CJI was supposed to formulate his opinion through a body of senior most judges that court described as collegium.

• Executive can ask the collegium for reconsideration, but after this the executive was bound to adhere to collegium’s decision.
• The Second judges case also reiterated the convention of appointment of senior most judge of the Supreme Court as Chief Justice of India.

4. Third Judges Case (Presidential reference), 1998, the court further clarified the collegium system by elaborating on its composition.

• It held that the collegium shall consist of CJI and her four senior most judges (in case of appointments to the Supreme Court) and CJI and his two senior most judges (in case of appointments to the high court).
• Additionally, for appointments to the high courts, the collegium must consult such other senior judges serving in the Supreme Court who had previously served as judges of the high court concerned.
  • (The judgment didn’t clarify if the views of the consultee judges are binding on the collegium or not).

5. NJAC – 99th constitutional amendment

• Attempt to create a separate, more transparent system for appointment of judges in Supreme court and High courts and transfer of judges between high courts. NJAC was to consist of members from Judiciary, Executive and General Public.
  • Chief Justice of India( Chairperson, ex officio)
  • Two other senior judges of Supreme Court next to CJI (ex officio)
  • The Union minister of law and Justice (ex officio)
  • Two eminent persons

6. In 4th Judges Case, 2015 the court struck down the NJAC system. It held that primacy of collegium was a part of the Constitution’s basic structure, and this power could not, therefore, be removed even through a constitutional amendment.

• But the court also understood the hostilities this judgment will face and thus initiated a plan to make the system more transparent.

­What is the role of government in the current appointment process?

• Government has a role only after names have been decided by the collegium. It’s role is limited to getting an enquiry 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 objection and seek clarifications regarding the collegium’s choices, but if the
  collegium reiterates the same names, the government is bound, under the constitutional bench judgments, to appoint them as judges.

­ Why collegium system is being criticized?

• Constitutional makers didn’t intend the current collegium system. It is a result of interpretive gloss.
• Too much power to Chief Justice of India headed collegium
• Autocratic: Judges selecting judges brings conflict of interest.
  • There have been several allegations of Nepotism while selecting judges at the top level.
    • There have been cases where the nearest relative of Supreme Court judges has
      been appointed as a high court judge, ignoring merit.
  • Further, the process is also criticized for not following the due process – Seniority not
    considered etc.
• Lack of transparency in the process
  • For e.g. in Aug 2023, questions were raised when one of the country’s finest judges in recent times, Justice Muralidhar, was not elevated to the Supreme Court.
  • Note: CJI Chandrachud has elaborated on the process of appointments – Merit, Seniority, Inclusivity (without sacrificing merit), Adequate representation from different High Courts, states, regions etc.
• Lack of expert body like a standing committee to help the collegium
  • Administrative task diverts judges of collegium from their principle judicial work of hearing and deciding cases.
  • Transferring judges of high court especially is a very time consuming effort.
• Collegium system limits field of choice
  • Generally senior most judges from the high court are considered and the junior high quality judges or members of the bar are ignored in the process.

Steps taken for Reforming the Collegium System

i. Memorandum of Procedure to cede some space to executive in appointment process.

• Not finalized yet due to differences between judiciary and executive on several clauses including whether a candidature can be rejected on national security grounds.

ii. Resolution to make collegium’s decision public on SC’s website.

Steps that can be further taken to improve collegium system

i. More Transparency on the ‘Criteria of Merit’, ‘Norms of Selection’ and the selection process.

• Formulate search-cum-Evaluation Committee (SEC), as proposed by Ministry of Law and
  Justice, to bring transparency in Judicial appointment through collegium system.
• Eligibility criteria to judge the performance and suitability must be formulated
  objectives and must be made public.
• Making Collegium decision come under RTI

ii. A Secretariat to enhance the efficiency in the working of collegium on the line of cabinet secretariat.

iii. Attracting More Talent in Judiciary

• AIJS

iv. Mechanism to deal with complaints and adverse reports

• Collegium should appoint enquiry committees to examine those complaints on case by case basis.
• An opportunity to be heard should also be provided.

Conclusion

As the possibility of replacing the collegium system is ruled out at least for the time being, it is
important to bring reforms in the working of collegium system. It is important that while bringing
these reforms the core constitutional values viz., independence of judiciary and integrity and
effectiveness of judicial review shall be kept in mind.

Example Questions

• Critically examine the Supreme Court’s judgment on ‘National Judicial Appointment Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India? [10 marks, 150 words] [CSM 2017]
• Bring out the issues involved in the appointment and transfer of judges of the Supreme Court and High Courts in India. [CSM 1998]
• Discuss the evolution of the appointment process of the judges in Higher Judiciary in India. Why is there a demand for reform in the process? [10 marks, 150 words]
• “Judges should have an important role in the appointment process of Judges in higher judiciary but not an exclusive role” Elaborate. [10 marks, 150 words]