Is also called “Judges- selecting- Judges”.

COLLEGIUM SYSTEM IN INDIA.

To begin with why collegium system is in news today, it is must for us to understand what collegium system is. What does Collegium System mean, history of this specific system, and other. Few concepts need to be very clear in our minds in order to understand the full concept of Collegium System.

COLLEGIUM SYSTEM

Collegium System is a system which is set up and consists of a Chief Justice of India and 4 seniors most Judges of the Supreme Court.  It is a system for appointment of the Judges of Supreme Court and High Court and their transfers of Judges.

The Collegium system in India is also called “Judges- selecting- Judges”.

The members of Collegium System select the upcoming Judge and give that name to law minister for official appointment of that Judge by the President. But the government can return the name for reconsideration. And if the collegium sent back the same name again then it is mandatory for the government to appoint that very Judge.

HISTORY

On 17 October 1981, a National seminar of the Lawyer, at Ahmedabad, the Bar Council of India made the recommendations to establish the Collegium System. According to lawyers, there shall be one proper system set up for the appointment of the Supreme Courts Judges by

1. Chief Justice of India
2. Five Senior Judges of Supreme Court
3. Two representatives who would be representing the Bar council of India and the Supreme Court Bar association.

Before first judge case, president used to appoint on advice of council of minister.

The First Judge Case

S.P Gupta v Union of India 1981

In this case the major question which arose were that whether president was bound by the advice of the Chief Justice of India (CJI)?

Here Justice Bhagwati held that consultation doesn’t mean concurrence. The Court by 4:3 majority held that the power solely and exclusively lies with the president. And for this, judgement was critiqued by many jurists because it took away the little independence that had developed by way of practice of consulting the Case.

The Second Judge Case

Supreme Court Advocates-on Record Association v. Union of India 1993

Almost after 12 years, questions are again put up before the 9 member’s benches of the Supreme court-

1. Whether the opinion of the Chief Justice of India in regard to the appointment of judges in the supreme court and high courts as well as matter related to transfer of high courts judges, is sustainable or not?

• Whether the matter including the strength fixing of the high court’s judges is justiciable or not?

The opinion of the Chief Justice regarding the appointment and transfer was made Mandatory. In this case the majority verdicts gave back Chief Justice of India his power over judicial appointments and transfers. It stated that Chief Justice of India only needs to consult two senior- most judges. The role of Chief Justice of India is primal in nature.

CONSULTATION MEANS CONCURRENCE, MANDATORY.

Fixation of Judge strength in the High Court is justiciable, but only to the extent and in the manner indicated.

The Second Judge Case was widely celebrated as it overruled the effects of the First Judge Case which limited the independence of judiciary.

The Third Judge Case

Re Presidential Reference

After the second judge case, in 1998 the President at that time K.R. Narayan, used his Constitutional power and asked the question for clarification of word ‘consultation’ in Article 217(1) and 222(1). The question was whether the consultation with the CJI was enough or the CJI and other judges be consulted for the process of consultation to be complete.

On a Reference from President, Supreme Court held that The Chief Justice of India and four senior-most judges will be the part of Collegium System of India. Where Chief Justice should consult with plurality of four senior most Judges from his opinion on Judicial appointments and Transfers that means if any one of the judges rejected a name, then that name should note be transferred ahead for those appointments.

And after this case, The Collegium System evolved completely and started to be followed for the appointments and transfer of Judges.

Limitations of Collegium system:

1. When judges appoint judges, then definitely a question of law arises on essence of democracy.

• Collegium system came out from the method of stare-decisis. In the constitution, makers nowhere foundthe merits in this system.

• The Law Commission’s report mentioned that the collegium system is an organisation inflicted with nepotism and personal patronage. That a favor is done in exchange for favor and inevitably, a judge’s son ends up becoming a judge.

Appointment Procedures for Judges in different countries.

• This unique position of law is only found in India. In the UK, which is known as the mother of democracy, the Judicial Appointments Commission (JAC) an Independent Commission looks after the process of selection of candidates for judicial office in courts and Tribunals. The JAC consists total 15 members; out of those 3 members will be from Judges Community,and remaining 12 members (including Chairmen) are appointed through open competition. Besides JAC there is another authority known as “Judicial Appointments Conduct and ombudsman” to look into the Complaints regarding appointments by JAC and Judicial discipline or Conduct.

• In South Africa, which is following the footsteps of great people like Mahatma Gandhi and Nelson Mandela, the president nominates the judges after consulting the “Judicial Services Commission” consisting of 23 members. The Judicial Services Commission consists of Judges, Advocates, Legal Professors, members of Parliament and eminent persons nominated by the president as its members. The members of the committees will continue during the pleasure of the parliament.

• In Italy, which is one of the ancient imperial states, the Federal Constitutional Court is their highest court, which consists of a total of 15 members. Out of the 15 judges, 1/3rd will be appointed by the President of the country, 1/3rd by the parliament in joint session and 1/3rd by highest instance ordinary and administrative courts.

• All the judiciaries in other prominent countries seem to be enveloped by the Executive’s interference. In India, it seems that the issue with the appointment of judges are the existing judges themselves. The parliament of India felt that the collegium system lacked accountability and transparency, as such through the 99th amendment to Indian constitution brought NJAC (National judicial appointments commission) in the year August 2014. The NJAC consists of a total of 6 members, the Chief Justice of India will be its Chairmen, two other senior most judges of Supreme court are also appointed as its members, the Central Law minister acts as ex officio member and Two eminent persons hail from India (selected by a committee consisting CJ of Supreme court, Prime minister of India and Opposition leader in Lok Sabha) will be other members. The executive asserts that the judiciary had no jurisdiction to assume to itself the role of appointment of Judges to the higher judiciary. It was pointed out that it is the Parliament alone which represents the citizenry and the people of this country and has the exclusive jurisdiction to legislate on matters.

• Mr. Justice M.N. Venkatachaliah, who headed the National Commission to review the working of the Constitution, had also recommended a five-Member National Judicial Commission, whereby, a wide consultative process was sought to be introduced, in the selection and appointment of Judges.

• Justice V.R. Krishna Ayer while writing forwards to “Story of a Chief Justice” expressed the collegium failed to select best judge’s available, similar view expressed by Justice Rumal Paul, Justice S.S. Lodhi and Sir Nariman. Justice Varma, who headed the bench of 9 judges which propounded the popularly known Second judge Case also changed his view and expressed that it is time to review upon the Collegium System.

NJAC Case – Supreme Court Advocates on Records Association v. Union of India

The above mentioned NJAC’s constitutionality came into question and the 4:1 decision held the NJAC unconstitutional. The majority view was that the issue of appointment has direct nexus with the independence of the judiciary envisaged in Article 50 and throughout the constitutional history and working of the Republic of India.

Independence of judiciary and separation of powers were held to be the two major reasons by J. Kehar as to why the NJAC was struck down. J. Kurian Joseph concurred and held the view that ‘things should not be multiplied unless necessary’ – Entia Non Sunt Multiplicands Sine Necessitate.

The dissenting view of J. Chelameswar does not consider the 99th Constitutional Amendment Act as violative of the constitution, as it does not invest absolute powers to the president to appoint or transfer judges. Furthermore, the NJAC ensures that no unworthy candidate shall be appointed as long as 2 members of the commission view that the candidate is incompetent. He further added that the presence of the union law minister does not in any way undermine the legitimacy and the independence of the judiciary, but his exclusion would severely undermine the sway of a democratic government chosen by the people and would be destructive to the basic feature of checks and balances.

Why in the news?

Onthe appointments of 138 judges which is a ‘record’ in higher judiciary in different courts, gave government a chance to attack on the collegium system of appointment of judges.

Union law minister, Kiren Rijiju, started collegium system as “alien” to the constitution. He further stated the issue of vacancies and appointments in the higher judiciary would continue to linger till such a time a new system is created for the appointment of judges.

The National Judicial Appointments Commission passed by parliament, with near unanimity to overturn the collegium system and was given constitutional status.

99^th Amendment 2014 the National Judicial Appointments Commision act, 2014 on April 13, 2015

However, the 99^th Amendment Acts and the National Judicial Appointment Commission Act,2014 were challenged in the Supreme Court and on Oct. 16. 2015. Both acts were declared void. (SC ADVOCATE-ON-RECORD ASSOCIATION & ANR VS UOI 2015) FOURTH JUDGE BENCH.

The Supreme Court said that NJAC to be in violation of the principles of separation of power and also independence of judiciary is at stake, part of the basic structure of the constitution is also violated by this Act. So, five judge constitutional bench struck down the National Judicial Appointment Commission (NJAC) by 4:1.

The Government has a problem with Collegium system as “inequitable representation of backward and minority communities in the higher judiciary is evident from the fact 79% of all high court judges appointed between 2018 to 2022 were from upper caste.

At present a collegium system is being followed for the appointment of judges. The Collegium system has some advantages and disadvantages to it like any other system.

Conclusion.

Appointment of Judges through any process will be perfect but giving angle to nepotism and casteism in appointment in judicial system is groundless. Every system has advantages and disadvantages like any other system. The Collegium System being independent from executive helps in keeping the trust of public in judiciary and its appointment. The Union Government, on the other hand, seems to be running point currently and the interference is back, and the system is looking forward for a better solution.

BLOG BY :

MR. SHUBHAM KUMAR

NIMT, GREATER NOIDA