Efficacy of the Collegium System

Questions being raised on the efficiency of the collegium system in the appointment of judges are not a new issue for the Indian Judiciary. However, in the recent times this issue has been aggravated. The Central Government returned files pertaining to the appointment of 25 high court judges highlighting the issue in the public domain. The need for immediate action to find a solution for the dilemma over judges’ appointment in the higher judiciary is essential to maintain the transparency and respect for the judiciary. Thus, the issue deserves wider public debate among the stakeholders.

Failures of the collegium system are highlighted by the Government as a way to replace/improve the system. Corruption, non-transparency and nepotism are highlighted as the present problems with the system. The present government had gone for a solution to the so called inefficient approach of the collegium through National Judicial Appointment Commission Act. However, the Apex court declared the Act as ultra-virus of the Constitution.

WHAT IS THE COLLEGIUM SYSTEM?

Judges-selecting-judges” system, also known as the collegium system, is process of assigning and transferring judges by judges. The system has evolved over the past 50 years through the successive judgements of The Supreme Court, and not by Constitutional provisions or Parliamentary acts.

The collegium system is followed by The Supreme Court and High Courts for the selection of judges of the higher judiciary. The Supreme Court Collegium is presided by The Chief Justice of India and comprises of 4 of the senior-most judges of The Supreme Court.

The High Courts also have a similar structure, which is headed by The Chief Justice of the respective High Courts and 4 of the senior most judges of that High Court. The names for appointment reach the Government for appointment by the President after they have been approved by the CJI.

The government can return back the names for reconsideration but if the collegium resends the names, the government has no choice but to mandate the appointment of the same. This system maintains the system of checks and balances in the democracy but at the same time upholds the independence of The Judiciary.

HISTORY OF COLLEGIUM SYSYTEM

Collegium system is not a part of our Constitution, so after independence, the method of appointment of judges, adopted by the Constituent Assembly was not what we see in the present times.

Article 124 of the Constitution of India provided for the establishment and constitution of Indian Supreme Court and for the appointment and removal of judges of the higher judiciary. The Constituent Assembly, keeping in mind the freedom of the judiciary, invested the power to appoint judges with The President of India.

The President, with the consultation of the Chief Justice of India and recommendation of other Supreme Court judges has to appoint the new judges of the Supreme Court. This was done to uphold the importance of the experience of the learned judges and also ensure that influence of political factors on the judges and independence of judiciary is negated.

In 1958, The Law Commission of India questioned the system stating it hindered the appointment of deserving talent to the courts. Another question raised about the system, was on the nature of the “consultation” with the CJI by the President, was there a compulsion on The President to follow the advice?

The question was first taken up in the S.P. Gupta v/s Union of India, 1982[1], also known as First Judges Case, which was a result of clashe between the executive and judiciary due to appointment of CJI of A.N. Ray in 1973, who superseded three Supreme Court Judges at the time of his appointment. This was repeated again in 1977 and led to filing of a petition in The Supreme Court.

The Supreme Court, while considering the nature of “consultation” stated that “consultation does not mean concurrence” and that The President was not bound to make decision based on The Supreme Court’s consultation.

However in 1993, this judgement was overruled in The Second Judges Case or Supreme Court Advocates on Record Association v/s Union of India[2]. In this case, The Supreme Court changed the meaning of “consultation”, making the recommendations of CJI binding on The President of India. This case resulted in the birth of the collegium system, though not the current system of appointment.

It was in The Third Judges Case, 1998[3], which guidelines and structure for the present Collegium System were laid down. It was decided that CJI alone would not be the part the consultation process. The collegium would consist of four senior- most judges of The Supreme Court and even if 2 judges are against the appointment of a judge, CJI will not recommend the name to The Government.

NATIONAL JUDICIAL APPOINMENT COMMISSION

The National Judicial Appointments Commission Act (NJAC)[4] was passed by the Parliament in August 2014 to modify the procedure for appointment and transfers of judges of High Courts and Supreme Courts. The flaws in the present collegium system, described as unaccountable and non-transparent, were highlighted by the Parliament as the need to change the original system.

The NJAC Act was introduced in the Parliament vide the 99th Amendment Bill, which established a judicial appointment commission to make recommendations to The President on appointment and transfer of the higher judiciary.

The Bill amended Articles 124(2), 127, 128, 217(1), 222(1), 224A and 231(2), replacing the 22 year old collegium system that kept the Government out of the selection process for Judges of the Supreme Court and High Courts. Provisions of 124A, 124B and 124C were also added which provided the procedure of Appointing judges and the role of the commission in the same.

However, in the case famously known as The Fourth Judges Case, 2015[5] The NJAC Act was struck down, declaring it unconstitutional.

Public Interest Litigations were filed before a three judge’s bench, initially, which was then placed before a larger bench as it involved a “substantial questions of law as to the interpretation of the Constitution of India”. The NJAC Act was considered to be violative of Principle of Judicial Independence. The Doctrine of Separation of Powers and the independence of the Judiciary is accepted as basic structure of the Constitution.

The five-judge bench consisting of Justice Madan Lokur, Justice J.S. Khehar, Justice Adarsh Kumar Goel, Justice Kurian Joseph, and Justice J. Chelameshwar repealed the NJAC Act along with the 99th Constitutional Amendment Act in a 4:1 ratio in Supreme Court Advocates-on-record Association & Union of India, 2015[6]. The five-judge bench decided that the collegium system would still be operative in the appointment of judges, although the inaccuracy and shortcomings of the collegium system i.e. the process of ‘judges appointing judges’ needs to be examined.

ARGUMENTS FOR AND AGAINST THE COLLEGIUM SYSTEM

Arguments For

  • Independence of Judiciary: Judiciary ensures that citizens of nation secure justice and that their rights are not violated. It is the custodian of our Constitution and protector of the people. Hence, an independent judiciary is an essential aspect for the formation for democratic nation. Collegium system ensures that there is no political interference in the working of the Judges. The executive and legislature are kept out of the judge appointment process, allowing the judiciary to hold them accountable when needed.
  • Judges know Judges: One of the most important advantages of “judges appointing judges” system is that it ensures appointments of worthy and hardworking judges. The High Courts work under the supervision of Supreme Courts and the District Courts under the supervision of High Courts, which allows the superior judges to be aware of the conduct of their subordinates and hold them accountable. When the recruitment of judges has to be done the higher judiciary can ensure the quality of judges being appointed by designating judges who will uphold the spirit of the constitution and perform their duty religiously. This system not only allows to keep an eye on the judges but also eradicates corruption and ensure efficiency of the Judiciary.

Arguments Against

Supporters of the NJAC Act highlight various drawbacks and provide criticisms for the Collegium System, which includes:

  • Nepotism and lack of transparency: The appointment of the latest Chief Justice of India, Shri D.Y. Chandrachud, builds up the argument for the supporters of the establishment of a Judicial Commission for the recruitment of judges. The appointment of the youngest CJI is just one example of many; this highlights how family legacy plays an important role in the appointment of judges. This can lead to an arbitrary process and the worthy candidates can miss their well-earned spots, due to opaqueness in the practice of judges appointing judges.
  • Non-constitutional and non-democratic: Another very important argument against the Collegium System is that the Constitution does not mention the “collegium system”. Our Constitutional makers were highly accomplished and took decisions through open debate and discussion yet there was no mention of the present system of recruiting judges. This provides support to the argument for NJAC as it assures that the collegium system is not the only way for appointment of judges. The system is not the best option and also can be seen as lacking in democratic values.

CONCLUSION

A cold war between the judiciary and the government hampers the Judicial system in the Country. It affects the processes related to growth of law and dissemination of justice. This is not an ideal situation for a developing country like India where The Judiciary is the beacon of hope for the public to fight injustice, hence a solution to this conflict shall be found, quickly but not hastily, ignoring a through debate and discussion on the matter. The government has its reasons for demanding a change in the appointment system and The Judiciary has its arguments in support of continuing the collegium system but some compromise from both sides is earnestly needed..

Appointment of SC & HC judges is an important function as it leads to the nomination of the higher judiciary, who are the protectors of the fundamental rights of the general public. A three-decade old system, the collegium has worked efficiently yet this does not preclude us from undertaking a review and possible revision. Every system needs to be updated and changed with time and the collegium system should go through the same review, not to look for reasons for its replacement but to analyse the system for improvements. The government’s NJAC is another option that can be looked at and revised in a manner that it can used as a better alternative for the collegium system or can work in harmony with the old system of appointment.

Options need to be explored and the decision be taken with the help for wider opinions and detailed discussion with the resolution that a decision needs to be taken on this topic, quickly yet effectively, needs to be realised by both– The Government and The Judiciary. The Judges are the supreme protectors of the Constitution and their authority and pre-eminence in ensuring justice for all should be maintained and hence their appointment process should be rigorous and highly specialised.


[1] AIR 1982 SC 149

[2] [1993] Supp 2 SCR 659

[3] AIR 1999 SC 1

[4] The National Judicial Appointments Commission Act, 2014, Act No. 40 of 2014

[5] (2016) 5 SCC 1

[6] (2016) 5 SCC 1

REFERENCES

CASES

AIR 1982 SC 149

[1993] Supp 2 SCR 659

AIR 1999 SC 1

(2016) 5 SCC 1

ACTS

The National Judicial Appointments Commission Act, 2014, Act no. 40 of 2014

WEBSITES

<https://www.iasexpress.net/collegium-system-of-appointment-of-judges-in-supreme-court-and-high-court-upsc-ias/> accessed on 2nd December 2022

<https://www.legalserviceindia.com/legal/article-3681-collegium-system-in-india.html> accessed on 3rd December 2022

<https://indianexpress.com/article/explained/explained-law/judiciary-appointment-of-judges-collegium-system-njac-debate-explained-8329397/lite/> accessed on 4th December 2022

<https://www.google.com/amp/s/www.thehindu.com/news/national/until-government-brings-new-law-on-judicial-appointments-collegium-system-is-the-law-sc/article66238992.ece/amp/> accessed on 5th December 2022


Author: Ananya Misra


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