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Editorials In-Depth, 20 Aug

Collegium System in India

General Studies- II (Appointment to various Constitutional posts)

Recently, The Supreme Court collegium cleared nine names for appointments in the top court, including the name of justice BV Nagarathna from the Karnataka high court (HC), who, if elevated now, could become the country’s first woman CJI in 2027.

The other names cleared by the collegium include two more women judges and one direct appointment from the Supreme Court bar.

What is the Collegium System?

It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. 

It has no place in the Indian Constitution.

What is Supreme Court of India Collegium and How it Works?

The Collegium of the Supreme Court consists of 5 senior most Judges including the Chief Justice of India

  • They will consider the elevation of Chief Justices/Judges of High Court to Supreme Court, elevation of Judges of High Courts as Chief Justices and elevation of Judges. 
  • In case of difference of opinion, the majority view will prevail.
  • Since Constitution mandates consultation with the Chief Justice of India is necessary for appointments to judiciary, the collegium model evovled.

What does the Constitution actually prescribe?

Article 124 deals with the appointment of Supreme Court judges.

  • It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. 
  • The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. 

  • It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. 
  • The Chief Justice of the High Court concerned too should be consulted.

Background for the Collegium System:

The Collegium of judges is the Supreme Court’s invention. It does not figure in the Constitution.

  • In effect, it is a system under which judges are appointed by an institution comprising judges
  • In 1970s, some judges were superseded in the appointment of the Chief Justice of India, and attempts made subsequently to affect a mass transfer of High Court judges across the country.
  • After that, there was a perception emerged that the independence of the judiciary was under threat. 

How did the Collegium system come into being?

The Collegium system was evolved in a series of cases over the years after 1970s. 

The ‘First Judges Case’ (1981):

  • Supreme court in this case ruled that the “consultation” with the CJI in the matter of appointments must be full and effective. 
  • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.

The Second Judges Case (1993):

  • It introduced the Collegium system, holding that “consultation” really meant “concurrence”.
  • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court. 

Third Judges Case (1998): 

On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

What is the procedure followed by the Collegium?

The President of India appoints the CJI and the other SC judges. 

Appointment of CJI: 

  • As far as the CJI is concerned, the outgoing CJI recommends his successor.
  • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s. 

Appointment of Supreme Court’s other Judges:

  • The Union Law Minister forwards the recommendation to the Prime Minister who, in turn, advises the President. 
  • For other judges of the top court, the proposal is initiated by the CJI. 
  • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs. 
  • The Collegium sends the recommendation to the law minister, who forwards it to the Prime Minister to advise the President.

Collegium System for High Courts:

The Chief Justice of High Courts is appointed as per the policy of having Chief Justices from outside the respective States. 

  • The Collegium takes the call on the elevation.
  • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges
  • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues. 
  • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Issues Associated with Collegium System:

  • Lack of Transparency: No one knows how judges are selected, and the appointments made raise the concerns of propriety, self-selection and nepotism. The system often overlooks several talented junior judges and advocates.
  • Lack of Consensus among Members: The collegium members often face the issue of mutual consent regarding appointment of judges. The shadow of mistrust between the members of the collegium exposes the fault lines within the judiciary.
  • Unequal Representation: The other area of concern is the composition of the higher judiciary. While data regarding caste is not available, women are fairly underrepresented in the higher judiciary.
  • Delay in Judicial Appointments: The process of judicial appointment is delayed due to delay in recommendations by the collegium for the higher judiciary.

Way Forward:

To preserve the Independence of Judiciary, filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary.

It is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity. It should ensure independence, reflect diversity, demonstrate professional competence and integrity.

Source: The Hindu

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