The Supreme Court collegium recently recommended five new individuals for the role of Chief Justices of high courts. This act has led to increased interest in understanding the workings of the Collegium System and how it relates to the appointment of the Chief Justice of India (CJI).
Origins and Evolution of the Collegium System
The Collegium System, a method devised for the appointment and transfer of judges, originated not from an Act of Parliament or from the Constitution, but through judgements passed by the Supreme Court. This system has significantly evolved from its inception.
In 1981, the First Judges Case emphasised that the “primacy” of the CJI’s recommendation concerning judicial appointments and transfers could be rejected for “cogent reasons”. This verdict thus led to the Executive having primacy over the Judiciary in terms of judicial appointments for the following 12 years.
In 1993, with the Second Judges Case, the Supreme Court established the Collegium system. The judgement held that consultation essentially implied concurrence. It clarified that this was not solely the personal opinion of the CJI, but a collective view shaped through interaction with the two senior-most judges within the SC.
In 1998, in the Third Judges Case, the Collegium expanded into a five-member group, consisting of the CJI and his four closest associates, following the President’s reference under Article 143.
Leadership of the Collegium System
The leadership of the Collegium rests with the CJI and includes four other of the senior-most judges of the court. The appointment of judges to higher judiciary occurs exclusively through the Collegium System, with the government’s involvement appearing only after the collegium decides the names.
Appointment Procedures in the Judiciary
The appointment of the CJI and other SC judges is undertaken by the President of India. In terms of the CJI, the individual holding the office last typically proposes their successor. It has generally followed a seniority pattern since the supersession controversy of the 1970s.
For SC Judges, the CJI initiates the proposal and consults other Collegium members and the senior-most judge hailing from the High Court to which the candidate belongs. The recommendations are communicated to the Law Minister, who then forwards them to the Prime Minister to advise the President.
Critiques of the Collegium System
The Collegium System has faced criticism for its lack of transparency and potential for nepotism. Detractors argue that it often ignites public controversies and overlooks numerous competent junior judges and advocates.
Attempts at Reforming the Appointment System
In 2014, an effort was made to replace the Collegium System with a ‘National Judicial Appointments Commission’ via the Ninety-ninth Amendment, but this attempt was overruled by the court in 2015 because it threatened the judiciary’s independence.
A Way Forward
Although filling vacancies is a continuous process requiring collaboration between the executive and judiciary and cannot be confined to a time frame, there is a need for a permanent, independent entity to institutionalise the process. Such a system should maintain judicial independence while reflecting diversity, demonstrating professional competence, and ensuring integrity.
Last Modified: February 15, 2024