Context

The Supreme Court questioned the government about the delay in clearing Collegium recommendations for judicial appointments to various High Courts.

Background

• A Bench headed by CJI SA Bobde — which termed it a “matter of great concern” — asked the Ministry of Law and Justice to spell out how much time it would take to process the recommendations.
• Pointing out that recommendations sent by the high courts of Bombay and Allahabad in May-June 2020 were hanging fire, it said in many cases government took more than a year.
• As per the court, as on date 189 proposals on appointment of judges are pending and sought an update on the latest position from the government.
  • The central government is yet to clear 16 names that were approved by the Supreme Court collegium for appointment to four high courts, with the oldest recommendations going back to July 2019.
  • The central government is also yet to process 103 proposals that were sent to the Union Ministry of Law & Justice by various high courts to be forwarded to the top court collegium for its approval, deepening the vacancy crisis in the higher judiciary.

Analysis

What is Collegium system?

• It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
• Under the system, the collegium decides the following:
  • appointments and elevations of judges and lawyers to the Supreme Court and the High Courts
  • transfer of judges to High Courts and the Apex court

Composition of Collegium SC Collegium: The Supreme Court collegium is headed by the Chief Justice of India and comprises four other seniormost judges of the court. HC Collegium: A High Court collegium is led by its Chief Justice and four other seniormost judges of that court.

The procedure

• CJI and SC Judges: The President of India appoints the CJI and the other SC judges.
  1. 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.
     • The Union Law Minister forwards the recommendation to the Prime Minister who, in turn, advises the President.
  2. SC Judges: 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 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.

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

Consultation with Judges The constitution also has another condition specific to the appointment of the judges in the High Courts and the Supreme Court. Article 124 (2) mandates the President to consult the judges of the court before appointing a judge in the same court. The ‘consultation’ however did not bind the president in the same way he is bound by the council of ministers and the president’s power to appoint judges before 1973 was just a formality and the appointments were on behalf of the executive government.

Is the system provided in the Constitution?

• The Collegium of judges is the Supreme Court’s invention.
• It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation. 

What about ‘independence of judiciary’?

• The Constitution of India has embodied the concept of Independence of Judiciary.
• However, the appointment of judges in the High Court and the Supreme Court has been left to the President, who works on the aid and advice of the council of ministers.
• The President shall act in accordance with such advice.

Genesis of the system

• The collegium system has its genesis in a series of Supreme Court judgments called the ‘Judges Cases’.
• The collegium came into being through interpretations of pertinent constitutional provisions by the Supreme Court in the Judges Cases.

The ‘First Judges Case’ (1981) 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) 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. 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.

Wrapping Up

The Memorandum of Procedure that governs the process for judicial appointments requires the Centre to give its feedback on the names recommended. Having been forced to play second fiddle, successive governments have used their feedback as a ‘pocket veto’. The time has come to fix the lacunae in the judicial appointment system in the interest of justice and welfare of the country.