Judicial Appointments by the Collegium is Questionable: Why? (Specials)

Published
14th Oct, 2022

Context

Recently addressing the National Cultural Diversity Summit of Asian Australian Lawyers’ Association Inc., former Chief Justice of India (CJI) has made certain observations regarding the collegium system which once again brought the much-debated issue of the process of judicial appointments to the fore.

Background

The collegium system evolved out of a series of judgments of the Supreme Court that are called the “Judges Cases”.
The collegium came into being through the interpretations of the relevant provisions of the Constitution that the Supreme Court made in these Judges Cases.

Evolution of the System:

First Judges Case (1981): It declared that the “primacy” of the CJI’s (Chief Justice of India) 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 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 the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

About

What is Collegium system?

The collegium is a group consisting of the Chief Justice of India and the four senior-most judges of the Supreme Court that decides the appointment of judges to the apex court.

How it works?

The Judges of the higher judiciary are appointed only through the collegium system, and the government has a role only after names have been decided by the collegium.
Names recommended for appointment by a High Court collegium reach the government only after approval by the CJI and the Supreme Court collegium.
Sometimes the government delays making the appointments, especially in cases where the government is perceived to be unhappy with one or more judges recommended for appointment by the collegium.

Appointment Procedures:

For Judges of Apex Court

For High Court CJ

For other judges of the SC, 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 consultees must record their opinions in writing and it should form part of the file.
The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

The Chief Justice of the High Court 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 outgoing 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.

Analysis

What is the role of Government in the judicial appointments?

The role of the government in this entire process 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 also 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.

On what grounds has the collegium system been criticised?

On account of Transparency: The system is non-transparent, since it does not involve any official mechanism or secretariat.
No definite Eligibility: it is seen as a closed-door affair with any prescribed norms regarding eligibility criteria, or even the selection procedure.
Lack of Consensus and Consultation: There is no public knowledge of how and when a collegium meets, and how it takes its decisions. There are no official minutes of collegium proceedings.

What were Attempts to reform the Appointment System?

The attempt made to replace it by a‘National Judicial Appointments Commission’ (through Ninety-ninth Amendment Act, 2014) was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Way Forward

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 institutionalise the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
It should ensure independence, reflect diversity, and demonstrate professional competence and integrity.