Collegium System

Why in news?

• The Supreme Court on 9^th August 2021 lashes out at Centre’s delay to act on the recommendations of the Collegium and appoint judges to High Court

What is collegium system?

• It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
• It is a system where a committee of the Chief Justice of India, four senior judges of the Supreme Court and three members of a high court (in case of appointments in the said high courts) take decisions related to appointments and transfer of judges in the Supreme Court and High Courts

Evolution of the collegium system

• Constitutional Provision:
  • Articles 124 and 217 of the Constitution deals with the appointment of judges of the higher judiciary.
  • It states that the President appoints the Chief Justice and the judges of Supreme Court and high courts, after appropriate consultations.
  • 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 president after consultation with the chief justice and such other judges of the Supreme Court and the high courts as he deems necessary.
• Appointment of CJI 1950-1973
  • 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.
  • In 1973, A.N.Ray was appointed as the Chief Justice of India >> This violated the convention formed earlier since Justice A.N.Ray superseded three other Supreme Court judges senior to him.
  • Again in 1977, another chief justice was appointed who superseded his seniors.
  • This resulted in a clash between the Executive and the Judiciary.
• First Judges Case (1981):
  • 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.
  • The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
• Second Judges Case (1993):
  • SC 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 SC.
• Third Judges Case (1998):
  • SC 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.
  • In case of appointment or transfer of High Court Judge ‘consultation’ would include a collegium of 2 senior-most judges of the Supreme court

PRACTICE QUESTION

In the context of Indian Constitution, consider the following statements:

1. Constitution empowers Chief Justice of India to appoint Judges of High Courts

2. Constitution explicitly mentions that the senior-most judge of the Supreme Court alone could be appointed as the Chief Justice of India.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

Answer