The Collegium System refers to the procedure of appointment and transfer of judges in India. Interestingly, this system has evolved through Supreme Court judgments and is not based on an Act of Parliament or a provision of the Constitution. Recently, the Supreme Court Collegium recommended the appointment of Justice Munishwar Nath Bhandari as Chief Justice of Madras High Court.
Tracing the Evolution of the Collegium System
In 1981, the First Judges Case established that the Chief Justice of India’s (CJI) recommendations on judicial appointments and transfers could be refused for “cogent reasons.” This ruling prioritized the Executive over the Judiciary in matters of judicial appointments for the subsequent 12 years.
The Second Judges Case in 1993 introduced the Collegium system, where “consultation” was interpreted as “concurrence”. It was further clarified that the opinion should not be individual but institutional, formed in consultation with the two senior-most judges in the Supreme Court.
Later, in the Third Judges Case (1998), the Supreme Court expanded the Collegium to a five-member body. This includes the CJI and his four senior-most colleagues by referring to the President’s reference (Article 143).
Who Leads the Collegium System?
The Supreme Court collegium is headed by the CJI and includes the four most senior judges in the court. Similarly, a High Court collegium is led by its Chief Justice and four other senior-most judges. The names recommended for appointment by a High Court collegium are approved by the CJI and the Supreme Court collegium before reaching the government. It is important to note that judges of the higher judiciary are appointed only through the collegium system, with the government playing a role only after the names have been decided by the collegium.
Procedures for Judicial Appointments
The following procedures are adhered to for judicial appointments in India:
– For the Chief Justice of India (CJI): The outgoing CJI recommends his successor, and the President makes the appointment. This procedure has strictly followed the rule of seniority.
– For Supreme Court Judges: The CJI initiates the proposal and consults the rest of the Collegium members and the senior-most judge hailing from the High Court of the recommended person.
– For Chief Justice of High Courts: As per policy, Chief Justices come from outside the respective states. The collegium makes decisions regarding their elevation.
Criticisms of the Collegium System
The Collegium System has faced criticism due to its lack of transparency and potential for nepotism. Furthermore, the system has often been embroiled in public controversies and criticised for overlooking several talented junior judges and advocates.
Attempts at Reforming the Appointment System
There have been attempts to replace the Collegium System with a ‘National Judicial Appointments Commission’ through the Ninety-ninth Amendment Act, 2014. However, the court struck down this amendment in 2015 on grounds that it threatened the independence of the judiciary.
Way Forward
While the filling up of vacancies is a continuous and collaborative process involving both the executive and the judiciary, it is time to consider a permanent, independent body. This proposed body should institutionalise the process with adequate safeguards to preserve the judiciary’s independence while guaranteeing judicial primacy. It should also ensure independence, reflect diversity, demonstrate professional competence and integrity.