The Indian judicial system has been a subject of paramount importance, often in the news due to criticisms and debates surrounding its processes. One such area of contention is the Collegium System which is used for the appointment and transfer of judges. Recently, these appointments have come under scrutiny as critics claim they are based more on relationships than on merit.
Understanding the Collegium System
The Collegium System, as it pertains to India’s judiciary, has not been prescribed by either an Act of Parliament or a specific provision of the Constitution. Instead, this method of appointing and transferring judges has evolved from judgments of the Supreme Court (SC). The system was brought into existence through a series of three cases known as: The First Judges Case (1981), Second Judges Case (1993), and the Third Judges Case (1998).
The Evolution of the Collegium System
In the First Judges Case, the court ruled that the “primacy” of the Chief Justice of India’s (CJI) recommendation on judicial appointments could be refused for “cogent reasons.” The verdict gave the Executive power over the Judiciary in judicial appointments, setting a precedent for the next 12 years.
Then came the Second Judges Case where the SC introduced the Collegium system. The Court stated that “consultation” meant “concurrence,” making it clear that the opinion was not of the CJI alone, but of an institutional body involving consultation with two senior-most judges.
Finally, in the Third Judges Case, the SC expanded the Collegium to a five-member body that included the CJI and four of his senior-most colleagues.
Leadership in the Collegium System
The SC collegium is led by the CJI and four other senior most judges. In the case of High Courts, the collegium consists of the incumbent Chief Justice and two other senior most judges of that court. The Government’s role comes into play only after the collegium has made its decision on the names for appointments.
Judicial Appointment Procedures
The process for the appointment of Chief Justice of India and other Supreme Court Judges starts with a proposal initiated by the CJI. The opinion of the consultees must be recorded in writing, and becomes an integral part of the file. The recommendation is then sent to the Law Minister who forwards it to the Prime Minister, who then advises the President.
Controversies Surrounding the Collegium System
The Collegium system has faced criticism over several issues, such as exclusion of the executive and lack of transparency, which critics say could lead to wrong choices while overlooking the right candidate. There are also concerns about favouritism, nepotism, and violation of the principle of checks and balances which give judiciary immense power but leave little room for oversight. Another area of concern is inequality, especially the underrepresentation of women in the higher judiciary.
Attempts at Reforming the Appointment System
Efforts have been made to replace the Collegium system with a ‘National Judicial Appointments Commission’ through the Ninety-ninth Amendment Act, 2014. However, the act was struck down by the Court in 2015 on grounds that it posed a threat to the independence of the judiciary.
Proposed Changes to the Collegium System
There have been suggestions for changes to address criticisms of the Collegium system. These include the establishment of a permanent, independent body to institutionalize the process with safeguards to maintain the judiciary’s independence and promote diversity, professional competence, and integrity.