Collegium system of Judicial appointments

IN NEWS:

• Former Chief Justice of India (CJI) U.U. Lalit remarked the collegium system of appointment of judges to the Supreme Court and High Courts as “perfect”

WHAT IS COLLEGIUM SYSTEM?

• It is the way by which judges of the Supreme Court and High Courts are appointed and transferred.
• The collegium system is not rooted in the Constitution or a specific law promulgated by Parliament; it has evolved through judgments of the Supreme Court.
• 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.
• Composition:
  • The Supreme Court collegium is a five-member body, which is headed by the incumbent Chief Justice of India (CJI) and comprises the four other senior most judges of the court at that time.
  • A High Court collegium is led by the incumbent Chief Justice and two other senior most judges of that court. Names that are recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
• The government has a role only after names have been decided by the collegium:
  • The role of the government is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
  • The government can raise objections and seek clarifications regarding the collegium’s choices. But if the collegium reiterates the same names, the government is bound to appoint them as judges.

CONSTITUTIONAL PROVISION ON JUDICIAL APPOINTMENTS:

• Articles 124 and 217 of the Constitution deals with the appointment of judges of the higher judiciary.
• They state 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.

EVOLUTION OF COLLEGIUM SYSTEM:

• 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.
  • This convention was violated in 1973 when Js. A.N.Ray was appointed as the Chief Justice superseding 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 (‘SP Gupta Vs Union of India’, 1981):
  • The Supreme Court by a majority judgment held that the concept of primacy of the CJI was not really rooted in the Constitution.
  • The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 did not mean “concurrence”
  • Hence, 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 (‘The Supreme Court Advocates-on-Record Association Vs Union of India’, 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.
  • The Court laid down nine guidelines for the functioning of the coram for appointments and transfers. This has come to be the existing form of the collegium, and has been prevalent ever since.
  • 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
• National Judicial Appointments Commission Act
  • As the collegium system faced criticism, the 99^th Constitutional Amendment Act, 2014 was passed to constitute National Judicial Appointments Commission.
  • NJAC aims to replace the collegium system for the appointment of judges
  • It is a six-member body, comprising of:
    • CJI as chairperson
    • Two senior-most Supreme Court judges
    • Union law minister; and
    • Two eminent persons, to be selected by a committee comprising the CJI, Prime Minister and leader of the opposition.
  • But a five-judge Constitution Bench in the Fourth Judges case (2015) declared the Act as unconstitutional.
• Memorandum of procedure of appointment of Judges:
  • It is an agreement between the judiciary and the government.
  • It contains a set of guidelines for making appointments to the Supreme Court and High Court.
  • The MoP is a crucial document as the Collegium system of appointing judges is a judicial innovation that is not mandated through legislation or text of the Constitution.
  • In 2016, the MoP re-negotiations took place following the Supreme Court’s decision to strike down NJAC.
  • MoP does not specify a timeframe for the central government to act on a collegium decision.

MERITS OF COLLEGIUM SYSTEM:

• Ensures independence of judiciary:
  • Collegium is the best way to ensure that judiciary is kept out of politics and is kept away from outside interference.
• Upholds separation of power:
  • ‘Separation of powers between the legislature, the executive and the judiciary’ is an element of the ‘basic structure’ of the constitution.
• Respects individual privacy:
  • Collegium resolutions do not contain reasons for rejecting a candidate as the comments or discussion, if made public, may become a blot on the head of the person, who may be a serving judge or a practising lawyer.

ISSUES WITH COLLEGIUM SYSTEM:

• Invention by the judiciary:
  • It is argued that the system is outside the constitutional scope, as it is an invention of the judiciary.
  • The constitution makers had no intention to give primacy to the CJI, which is why it was made necessary to only consult him than concur with him.
• Undemocratic:
  • The collegium system is undemocratic as the people’s representatives have no say in it. The whole power is monopolized in the hands of a few. In fact, India is the only country where judges appoint judges.
• Opaque process:
  • Since 2017, the collegium has been voluntarily publishing its various decision, along with the reasons underpinning the collegium’s choices. However, this was not followed in 2019 when it publishes appointment details without reasons.
  • This leaves many aspects, such as how the criteria like work, reputation, integrity and experience play in the selection process, beyond scrutiny.
• Lack of accountability:
  • There is no written manual for functioning or definite selection criteria. Most of the collegium functions are outside the ambit of RTI. Also, the decisions already taken are often arbitrarily reversed.
  • It has even taken decisions against its own guidelines without proper explanations. Eg: In January 2019, the court superseded 3 senior-most judges while recommending names for elevation to the Supreme Court, abandoning the guideline of respecting seniority in appointments.
• ‘Kin syndrome’:
  • It is a term coined by Js. V.R Krishna Iyer to refer to the nepotism and personal patronage prevalent in the functioning of the Collegium System.
  • Various reports have supported this view, stating that the whole judiciary is run by just a few hundred privileged families.
• No fixed timeline:
  • There is no time limit fixed for the government to take actions on the collegium recommendations. This is the reason that appointment of judges takes a long time.
• Pendency:
  • The system has proved inefficient and slow, resulting in huge number of vacancies in the judiciary and subsequently leading to pendency of cases.
• Gender insensitive:
  • Women representation in higher judiciary is abysmally low: In high courts, the percentage of women judges is a mere 11.5%, while in the Supreme Court there are four sitting women judges out of 33 in office.
  • Memorandum of Procedure for the appointment of judge has no mention regarding the representation of women.

SUGGESTIONS TO IMPROVE THE JUDICIAL APPOINTMENTS

• Ensure wider participation in appointment process:
  • The judiciary is the best judge of their legal acumen but it is the executive that can judge the antecedents of a candidate in a better way.
  • Appointment process has to be “truly participatory" and seek inputs from a “committee of eminent citizens", which need not be restricted to the legal fraternity.
• Database updation:
  • A complete and periodically updated database of potential candidates must be made accessible to the public.
• All India Judicial Service:
  • The AIJS should be introduced in order to attract the young talent to the judiciary and fill vacancies in the lowest levels.
• Ensure transparency:
  • A complete record of video or audio of collegium deliberations
• Need for the collegium to have a permanent secretariat:
  • The secretariat would collect background information and “assess the judicial worth of a particular candidate".
• Reform eligibility criteria for Judges:
  • To ensure a regional balance with adequate representation from all communities, including women.

BEST PRACTICE:

• German model >> appointments made by election:
  • Half the members of the Federal Constitutional Court are elected by the executive and half by the legislature.

PRACTICE QUESTION:

Q. Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India. (GS 2, CSE 2017)