The Supreme Court has recently put forth questions to the government concerning a delay in the clearance of Collegium recommendations for appointments to High Courts. This incident puts a spotlight on the system of appointment and transfer of judges.
Understanding the Collegium System
The Collegium system revolves around the appointment and transfers of judges. Not formed through an Act of Parliament or by Constitutional provision, it emerged naturally through Supreme Court verdicts. In essence, this system determines that the appointment and transfer of High Court and Supreme Court judges are based on the recommendations of a committee. The Collegium system comprises the Chief Justice of India (CJI) and four of his senior-most colleagues.
Evolution of the Collegium System
The system saw its beginnings with the First Judges Case in 1981, where it was decided that the CJI’s recommendations could be declined for significant reasons. This gave the Executive power over the Judiciary in appointing judges for over a decade. However, the Second Judges Case in 1993 established the Collegium system, asserting that “consultation” equated to “concurrence”, bringing forth a shift in power.
The Third Judges Case in 1998 added further strength to the system, expanding the Collegium to a five-member body that included the four senior-most members of the court alongside the CJI. These changes led to more independence in the Judiciary.
Appointment Procedures in the Collegium System
While the President of India appoints the CJI and other Supreme Court judges, the outgoing CJI recommends his successor. The appointment of other Supreme Court judges begins with a proposal from the CJI, following consultation procedures within the Collegium and with relevant High Court members.
For the appointments of Chief Justices of High Courts, the policy generally prefers professionals outside of respective states. The initiation of this process falls to the outgoing Chief Justice of the concerned High Court in consultation with their two senior-most colleagues.
Critique of the Collegium System
Despite its critical role, the Collegium system has faced criticism for its lack of transparency, potential for nepotism, and overlooking of talented junior judges and advocates. It has also been embroiled in public controversies, leading to calls for reform. Attempts like the ‘National Judicial Appointments Commission’ in 2015 were quashed due to concerns over threats to judiciary independence.
Constitutional Provisions
The Indian Constitution provides several articles relating to Judiciary appointments. Article 124(2) outlines that Supreme Court judges are appointed by the President following consultation with relevant judges in the Supreme Court and High Courts. Similarly, Article 217 states that High Court judges are appointed by the President in consultation with the CJI, the State’s Governor, and the Chief Justice of the High Court in relevant cases.
Looking Ahead: Future Reforms
Filling vacancies in the Judiciary is an ongoing, cooperative process between the executive and the Judiciary. While a specific time frame may not be feasible, it is vital to consider establishing a permanent, independent body. This organization would institutionalize the appointment process while maintaining the necessary safeguards for judicial independence. It should prioritize professional competence, integrity, diversity, and independence. Furthermore, it could be beneficial to provide the President with a panel of potential appointees to choose from, based on preference and other valid criteria.
