Recently, the Supreme Court Collegium has arbitrarily withdrawn its own decision on appointing two judges and has recommended names of two other judges to the government for elevation to the Supreme Court by superseding 3 judges senior to them. It highlights issues regarding the appointment of judges and the need to understand the system of judicial appointments in India.
What is the collegium system?
- Collegium system in India also called as “Judges- selecting- Judges”, is the system by which the judges are appointed and transferred only by the judges.
- The system has evolved by means of the judgments of the Supreme Court, and not by an Act of Parliament or by a Constitutional provision.
- The Supreme Court Collegium is headed by the Chief Justice of India and comprises 4 other senior most judges of SC.
- A High Court collegium is headed by its Chief Justice and 4 other senior most judges of that court. Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
- The government is mandated to appoint a person as a Supreme Court judge if the collegium reiterates its recommendation.
How has the collegium system evolved in India?
- The constituent assembly adopted a consultative process of appointing judges to make sure that judges are not affected by political influence.
- It avoided legislative interference as well as providing a veto to the Chief Justice.
- Instead, it vested in the President the power to make appointments and transfer judges between high courts.
- The President (normally act on the advice of the council of ministers) was however needed to consult certain authorities such as the CJI or CJ of High Court.
First Judges Case, 1981
- The Supreme Court in the First Judges Case, 1981 ruled that the word “Consultation” could not be interpreted to mean “concurrence” = CJI’s opinion is not binding on the executive.
- The Executive could depart from the CJI’s opinion only in exceptional situations and any such decision could be subject to judicial review.
Second Judges Case, 1993
- The SC in Second Judges Case, 1993 overruled its earlier decisions.
- It now held that Consultation meant concurrence and that the CJI’s opinion enjoys supremacy = binding on the executive.
- This decision was justified by the court claiming that the CJI could be the best option to know and assess the worth of candidates.
- However, the CJI has to formulate the opinion only via a body of senior judges that the court described as the ‘collegium’.
Third Judges Case, 1998
- The SC in the third judges case, 1998 clarified that the collegium would consist of
- CJI and 4 senior-most judges in case of appointments to the Supreme Court.
- CJI and 2 senior-most judges in case of appointments to the High Court.
About Three Judges Cases (not third)
- Three Judges Cases = First Judges Case 1981 + Second Judges Case 1993 + Third Judges case 1998.
- Over the course of these 3 cases, the court evolved the principle of judicial independence.
- This meant that no other branch of the state (legislature and executive) can interfere with the appointment of judges.
- It is with this principle in mind that the SC introduced the collegium system.
National Judicial Appointments Commission (NJAC)
- The government through 99th constitutional amendment wanted to replace the collegium with the NJAC.
- The NJAC comprised of 3 judges of SC, central law minister, and 2 civil society experts.
- A person would not be recommended by NJAC if any 2 of its members did not accept such recommendation = making appointment process more broad-based.
- However, it was struck down by the Supreme Court in 2015 in the Fourth Judges Case.
Fourth Judges Case, 2015
- In the Fourth Judges Case, 2015, the SC upheld the primacy of the collegium by striking down the NJAC law.
- The court’s rationale was that the NJAC law offered politicians an equal power in judicial appointments to constitutional courts which is against the provision of “separation of power” under the Basic Structure of the constitution = Ultra Vires of the constitution.
- Thus the SC declared the collegium as part of the Constitution’s basic structure = it’s power could not be removed even through a constitutional amendment.
- However, due to the widespread criticisms against the collegium, the judgement promised to consider necessary measures to improve the collegium system. For this purpose, the SC required the government to submit the Memorandum of Procedure (MoP).
Memorandum of Procedure (MoP)
- It is an agreement between the judiciary and the government which contains a set of guidelines for making appointments to the higher judiciary.
- Even though the draft MoP has been sent to the SC by the government, it is stuck between them as certain sections in it are alleged to be of taking away powers of the court to appoint judges.
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What are the criticisms against the collegium?
- Unconstitutional and autocratic: ‘Collegium’ is nowhere mentioned in the Constitution and has been evolved by the judiciary itself for retaining the power to select judges by itself.
- Undemocratic: Selection of judges by collegium is undemocratic since judges are not elected by the people and are not accountable to the people or to anyone else.
- Non-transparency and opaque: (No official procedure for selection + lack of a written manual for functioning + selective publication of records of meetings+ no eligibility criteria of judges) = bring opacity in collegium’s functioning.
- Promotes nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles. Thus it encourages mediocrity in the judiciary by excluding talented ones.
- Inefficient: Collegium has not been able to prevent the increasing cases of vacancies of judges and cases in courts.
- Ignores SC’s own guidelines: The recent supersession in appointment is inconsistent with the view of the Supreme Court in the Second Judge’s case, 1993, where it laid that:
- Seniority amongst Judges in their High Courts and on all India basis is significant and should be given due consideration while making appointments from amongst High Court Judges to the Supreme Court.
- Unless there is any strong reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court.
- Against established conventions: The convention of ‘seniority’ has long been held as the procedure for appointments but ‘supersession’ ignores and abdicates this convention, creating space for subjectivity and individual bias in appointments.
- No reforms made after fourth judges case: After striking down the NJAC, the court did nothing to amend the NJAC Act or add safeguards to it that would have made it constitutionally valid. Instead, the court reverted to the old Collegium-based appointments mechanism.
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What is the way forward?
The subjectivity and the inconsistency of the collegium system highlight the need to relook at the process of appointment of judges:
- The NJAC should be amended to make sure that the judiciary retains independence in its decisions and re-introduced in some form or the other.
- A written manual should be released by the Supreme Court which should be followed during appointments and records of all meeting should be in the public domain in order to ensure transparency and rule-based process.
Thus, India needs to restore the credibility of the higher judiciary by making the process of the appointing judges transparent and democratic. Apart from reforming the collegium system, the quality of judges can also be improved through the implementation of All India Judicial Services (AIJS).
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