The Supreme Court (SC) Collegium, headed by the Chief Justice of India (CJI), recently proposed nine individuals for supreme court judge appointments to the government. This recommendation is noteworthy in that it is the first time the Collegium has included three women judges in a single resolution, underscoring an advocacy for gender representation at the highest levels of judiciary.
The Collegium System Explained
Unlike the usual legislative enactments, the Collegium system – responsible for judicial appointments and transfers – evolved from various SC judgments. To understand its evolution, one must look back at significant cases over the years:
– First Judges Case (1981): This ruling established that the CJI’s recommendation on judicial appointments could only be denied for compelling reasons. This judgment gave executive branches superiority over the judiciary in judicial appointments for 12 consecutive years.
– Second Judges Case (1993): The SC introduced the Collegium system, interpreting “consultation” as “concurrence,” thereby asserting it wasn’t merely the CJI’s individual opinion but an institutional one, made in consultation with other senior SC judges.
– Third Judges Case (1998): Following the President’s reference (Article 143), the SC expanded the Collegium to five members – the CJI and his four senior colleagues.
The role of the government in this system is primarily to conduct inquiries, particularly when a lawyer is on the verge of being elevated as a High Court or Supreme Court Judge.
Governing Bodies
The Supreme Court Collegium is led by the CJI and includes the four other most senior judges. The High Court Collegium operates similarly, under the supervision of its Chief Justice and four other senior-most judges. The Collegium system is the sole means through which higher judiciary judges are appointed, and their recommendations reach the government only after approval by both the CJI and the SC Collegium.
Judicial Appointments Procedure
The President of India appoints the CJI and other SC judges. The outgoing CJI typically recommends his successor, usually choosing based on seniority. For appointments of other SC judges, the CJI initiates the proposal, consulting with the rest of the Collegium members, as well as the highest-ranking judge hailing from the High Court of the recommended person.
The Chief Justice of High Courts is chosen based on a policy of selecting Chief Justices from outside their respective States. In contrast, High Court judges are suggested by a Collegium comprising the CJI and two senior judges.
Criticisms of the Collegium System
The Collegium system has faced substantial criticism for its lack of transparency and potential for nepotism. Critics also highlight its propensity for being entangled in public controversies and overlooking many capable junior judges and advocates.
Despite these criticisms, attempts at reforming the system, such as replacing it with a ‘National Judicial Appointments Commission’, have proved unsuccessful so far.
Constitutional Provisions
As per Article 124(2) of the Indian Constitution, SC Judges are appointed by the President post-consultation with a suitable number of SC and High Courts’ Judges. Additionally, under Article 217, a High Court Judge is designated by the President, in consultation with the CJI, the State’s Governor, and in some instances, the Chief Justice of the High Court.
The Way Forward
While acknowledging that filling up vacancies is a collaborative process between the executive and judiciary, it is necessary to consider establishing a permanent, independent entity. Such a body would institutionalize this process while ensuring judicial independence, reflecting diversity, demonstrating professional competence, and maintaining integrity. One suggested improvement to the current system could involve providing a panel of potential judges to the President, allowing them to appoint based on order of preference and valid criteria.
