Collegium System and its war with the Central Government

“No institution in ‘democracy’ is perfect” -CJI DY Chandrachud

The Collegium system is the most debatable topic from the time of its origin. This system has emerged from the various judicial pronouncements of the Supreme Court.

A huge amount of criticism has been faced by the collegium system from the government and the society because of its negative aspects like obscurity and favouritism. Due to these issues, the debate has arisen again by the Central government.

Union Law Minister Kiren Rijiju has written to the Chief Justice of India, that he is not satisfied with the current system of appointing judges aka Collegium System, and has proposed the reintroduction of the National Judicial Appointment Commission (NJAC) and also suggested that the collegium should have at least one government nominee.

What is the collegium system?

The collegium system is a system which deals with the appointment and transfer of the judges of the different courts of India including the Chief Justice of India. It has not been developed by any Act or any provision of the constitution but it owes its origin to the various judgements.

The Present Collegium system comprises 5 judges including 4 Senior-Most Judges of the Supreme Court of India headed by the Chief Justice of India, similarly, Judges of High Courts are also appointed by a group of three Judges which is lead by the Chief Justice of India and other two senior-most judges of the respective High Courts.

Article 124(2) and Article 217 of the Indian constitution lay down that the Judges of the Supreme Court and High Court shall be appointed by the President of India after consultation with judges of the Supreme Court for the former and with the consultation of the Chief Justice of India, the Governor of the state for the latter.

Therefore, power has been Conferred in the hands of these people for the transfer and appointment of the Judges and the role of the government is only to choose those persons who are named by the collegium.

Origin and Journey of the collegium system:

Over time, the procedure of appointment has faced many changes and has transformed from being an executive function which has to be accomplished by the president to being a judicial function which is being exercised by the Chief Justice of India, and the role of the President has become no more than an approver.

The existence of the collegium system is itself an irony because it replaces a body established by the parliament(NJAC) based on it being unconstitutional while being unconstitutional itself.

Till the year 1973, there was a mutual agreement between the government and the Chief justice of India which led to the formation of the convention where it has been agreed that the chief justice of India will be the senior most judge of the Supreme Court but, in 1973, this convention was violated when A.N.Ray was appointed as the Chief Justice of India after superseding three other senior judges of the Supreme Court to him.

This incident saw its repetition in 1977. In this way, the clash between the executive and judiciary regarding the appointment of judges came into existence. Article 124(2) and 217 of the Indian Constitution states that The President shall appoint the judges after consulting with the judges of the Supreme Court and High Court whichever may be necessary but our Constitution is silent about the word “Consultation”. Such matter was later on decided in the following catena of judgements.

S.P. Gupta v Union of India (1981) (“First Judges’ Case”)
In 1981, the collegium system was surrounded by debates when the then law minister, Shiv Shankar filed a petition regarding the implementation of a policy for posting judges out of their home states.

While dealing with the several petitions, the court also shed some light on the power to appoint High Court and Supreme Court Judges and held that the Chief Justice of India and Chief Justice of the High court can only consult and only the executive can exercise the power of appointment.

Justice Bhagwati held that the word consultation does not mean concurrence. The decision of the Supreme Court Judges is not binding on the President in the matter of Appointment and transfer.

Supreme Court Advocate-on-Record Association vs Union of India (1993) (“Second Judges’ Case”)
The Supreme Court overruled its previous judgement in the S.P. Gupta case and held that the word “consultation” implies “concurrence” which means that the Chief Justice of India has the superiority over the President and his power is regarded as “unique, singular and primal”.

Further Supreme court stated that the decision of the Chief Justice of India is not solely his own but is of the collegium which consists of the CJI and Two other Senior Judges.

Re Presidential Reference (1998) (“Third Judges’ Case”)
In this case, 9 judge bench of the Supreme Court opined that the decision of the Chief justice of India has primacy and the collegium should consist of CJI along with 4 other senior-most Judges of the Supreme court which was earlier two in number.

In 2014 Bhartiya Janta Party (BJP) came to power and passed the National Judicial Appointment Commission Act. The composition of NJAC consisted of the CJI, 2 Senior-most judges of the Supreme Court, The Law Minister of India, and 2 eminent members that were chosen by the selection committee(the CJI, P.M., the leader of the opposition). Power has been given to the NJAC for recommending the names for the appointment of judges of the Supreme court and the Transfer and appointment of the judges of the high court.

The constitutionality of NJAC was challenged in the case of Supreme Court Advocate-on-Record Association vs Union of India (2015) andthe Majority of the Supreme Court declared it unconstitutional and violative of the Basic Structure doctrine of the Indian Constitution and also found it to be against the independence of the judiciary.

Hence in this way, the Present collegium system has evolved in which the President is obliged to consider the opinion of the Chief Justice of India and the opinion must be made after due Consultation with the Judges in the Collegium.

Should collegium be quashed?

The constitutional validity of the Collegium System is no doubt a big question and has been answered mostly negatively.

Late V.R. Krishna Iyer says regarding the nature of collegium:

“Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own makes the selection. There is no particular structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails. In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone.”

While reading Article 124(2) we often ignore the fact that the article and its application do not match and render the collegium unconstitutional. The article clearly says that:

Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.

Meaning, even if the collegium system is ignorant of the constitutional scheme accommodating a body for the appointment of judges, the membership of this very body must be verified and validated by the President of India.

The criticism of the collegium mainly revolves around the following grounds:

• Transparency: Due to the absence of any criteria-based assessment and any information available regarding the working of the collegium system, makes it less reliable and credible.
• Unconstitutional: In the Constitution, the word “collegium” is mentioned nowhere, and has been created by the judiciary for reserving the power to select judges.
• Undemocratic: There is no role of the public in the selection of judges, and consequently the judges are not accountable to the people.
• Nepotism: Many judges are appointed based on their relations with senior lawyers in the higher judiciary.

Putting aside all the criticism, the Supreme court still maintains that the collegium system is the most transparent body and it should neither be quashed nor replaced. Former Chief Justice UU Lalit also said that the collegium system will stay here unless the government revives the National Judicial Appointment Commission.

Image Credit: Telegraph India

About the Authors

Aditya Kumar Saraswat and Aman Bhan Pachauri are third year Students of the Faculty of Law, Aligarh Muslim University, Aligarh, India.