Collegium System in India

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Context: The Supreme Court asked the government to clarify the status of 55 recommendations made by the Collegium for judicial appointments to various High Courts six months to nearly a year and a half ago.

Relevance: GS-II: Separation of powers between various organs dispute redressal mechanisms and institutions.

While working on the structure of courts in India the constituent assembly had one of the most fierce debates. The debate was surrounded around how much power the judiciary should have and what can be its jurisdiction etc., This can be seen in the words of Alladi Krishnaswami Ayyar as

“While there can be no two opinions on the need for the maintenance of judicial independence, …it is also necessary to keep in view one important principle. The doctrine of independence is not to be raised to the level of dogma to enable the judiciary to function as a kind of super-legislature or super – executive. The judiciary is there to interpret the Constitution or adjudicate upon the rights…”

India perhaps is the only country where the Judges are appointed by judges themselves through the mechanism of the collegium system. This was not the case until 1973 where judges of the supreme court and High court are appointed by the President through the recommendations of the union cabinet.

Appointment of Judges up to 1973

• Until 1973, there existed a consensus between the Government of the day and the Chief Justice of India. A convention was formed where the senior-most judge of the Supreme Court was to be appointed as the Chief Justice of India.
• But this practice was suddenly broken by the government when Justice A.N. Roy was made Chief Justice of India after superseding three senior judges of the Supreme Court i.e.  Justice Shelat, Justice Hegde, and Justice Grover.
• After this decision of the government, there went huge debate across the whole of India that is there executive interference prevailing in the matter of appointment of a judge of the Supreme Court?
• This resulted in a clash between the Executive and the Judiciary.

Under Article 124(2) and Article 217, the judges of the Supreme Court and High court are appointed by the president. The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary. The other judges are appointed by the president after consultation with the chief justice and other judges of the Supreme Court and the high courts as he deems necessary. The consultation with the chief justice is obligatory in the case of appointment of a judge other than the Chief justice.

First Judges case or S.P.Gupta Case (1982)

• Here the Supreme Court has given different interpretations of the word ‘consultation’.
• The Supreme Court discussed 2 major points during the proceedings of this case
• When asked the Supreme Court of India whether the word “consultation” in the constitutional article 124 mean “concurrence”; the Supreme court overruled this and denied saying that Consultation does not mean concurrence. The President was not bound to make a decision based on the consultation of the Supreme Court.
• It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
• The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

Second judge case or Supreme Court Advocates on Record Association (SCAORA) case (1993) 

• In this case, the Supreme court overruled its earlier verdict and changed the meaning of consultation to concurrence.
• Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court.
• But, the Chief Justice would tender his advice on the matter after consulting two of his seniormost colleagues. 
• This case can be considered as the starting point of the collegium system.

Third judge case or The presidential reference to the Supreme court (1998)

• The presidential reference was issued questioning the meaning of the word consultation in articles 124, 217, and 222 of the Constitution.
• Supreme Court on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
• Even if 2 of the judges are against the opinion, the CJI will not recommend it to the government.
• The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process is not binding on the government.
• This case can be considered as the final stage of the evolution of the collegium system.

• Opaque and Unaccountable System: The lack of information about the appointment of judges, including the criteria based on which the judges make their choice, is the most persuasive criticism of the collegium system. Presently, there is no structured process to investigate if a judge who is recommended by the collegium has any conflict of interests.
• Social Background of Judges: The collegium system structurally tends to favour upper-caste males and is far from being representative of the population for whom it seeks to deliver justice. Based on data, it is clear that people from dominant identities are disproportionately represented in the higher judiciary. Specifically, for 37 years of the Supreme Court’s existence, it had appointed only male judges. In 1989, Fathima Beevi became the first woman to be elevated to the Supreme Court to be a judge.
• Transfer of Judges: There are no defined criteria to define why certain judges are transferred. In the recent example wherein September 2019, Chief Justice of Madras High Court Vijaya Kamlesh Tahilramani resigned after the collegium upheld their decision to transfer her to the high court of Meghalaya (one of the smallest in the country). Justice Tahilramani was the senior-most high-court judge in the country. 
• 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.
• 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.

• In 2014, the government tried to replace the collegium system with the National Judicial Appointments Commission (NJAC) through the 99th constitutional Amendment act.
• The commission was to consist of the CJI, two Supreme Court judges “next in seniority to the CJI, Union Law Minister and two eminent jurists.” 
• However, in 2015, the Supreme Court has declared both the 99th Constitutional Amendment as well as the NJAC Act as unconstitutional and void.
• Consequently, the earlier collegium system became operative again. This verdict was delivered by the Supreme Court in the Fourth Judges case (Supreme Court Advocates-on-Record Association and another Vs. Union of India (2015). The court opined that the new system (i.e., NJAC) would affect the independence of the judiciary.

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.

Rethinking judicial appointments: Collegium vs. Commission

Recommendations of various bodies for setting up an independent appointments commission Over the decades, several high-level Commissions have examined this method of appointment of judges to the higher judiciary.  They have suggested that an independent body be set up to make recommendations for such appointments.  However, they differed in the representation of the judiciary, legislature, and executive in making such appointments.  These are summarised below.

Comparison of various recommendations on the composition of a proposed appointments body

• It may be noted that the Law Commission, in its 2008 and 2009 reports, suggested that Government should seek a reconsideration of the judgments in the Three Judges cases. 
• In the alternative, Parliament should pass a law restoring the primacy of the CJI, while ensuring that the executive played a role in making judicial appointments.

Appointments process in different countries: Internationally, there are varied methods for making appointments of judges to the higher judiciary.  The method of appointment of judges to the highest court, in some jurisdictions, are:

Way Forward

It is true that the filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process. 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. Apart from reforming the collegium system, All India Judicial Services (AIJS) should be implemented for streamlining the appointment procedure and improving the quality of judges.