Recently, the Union Law Minister’s rhetoric has once again raised controversy over the collegium system. There is an allegation on the collegium system that arbitrariness and nepotism system apply in the appointment of judges. The Collegium system has been criticized. This article will be sufficient to answer the frequently asked questions related to the collegium system.
Let’s know the collegium system.
Articles 124(2) and 217 of the Indian Constitution deal with the appointment of judges to the Supreme Court and High Courts respectively.
Collegium System and its Evolution:
Introduction: It is a system of appointment and transfer of judges, which has evolved through decisions of the Supreme Court, not established by an Act of Parliament or a provision of the Constitution.
Evolution of the Collegium System:
First Judge Case (1981): It laid down that the “precedence” of the suggestion of the Chief Justice of India (CJI) on judicial appointments and transfers can be overruled for “cogent reasons”. This decision has established the supremacy of the executive over the judiciary in judicial appointments for the next 12 years.
Second Judges Case (1993): The Supreme Court introduced the collegium system by clarifying that “consultation” actually means “consent”. In this case, the Supreme Court further stated that it would not be the individual opinion of the CJI, but an institutional opinion taken in consultation with the two senior-most judges of the Supreme Court.
Third Judge Case (1998): Following a Presidential Reference (Article 143) issued by the President, the Supreme Court expanded the collegium as a five-member body, which would include the CJI and his four senior-most colleagues.
Chief of Collegium System:
The Supreme Court Collegium is headed by the CJI and consists of the four other senior-most judges of the Supreme Court. The collegium of a High Court is headed by its Chief Justice and four other senior-most judges of that court. The judges of the higher judiciary are appointed only through the collegium system and the role of the government in this process is only after the names are decided by the collegium.
Procedure prescribed for various judicial appointments:
Chief Justice of India (CJI): The CJI and other judges of the Supreme Court are appointed by the President of India. With reference to the next CJI, the outgoing CJI recommends the name of his successor. However, since the trespassing controversy of the 1970s, practically the basis of seniority is followed.
Supreme Court Judge: The proposal for selection of names for other judges of the Supreme Court is initiated by the CJI. The CJI consults the rest of the members of the collegium as well as the senior-most judge of the High Court to which the person recommended for judgeship belongs. As per the prescribed procedure, the consultants are required to record their opinion in writing and the same should be made part of the file. The Collegium then sends its recommendation to the Union Law Minister, through whom it is forwarded to the Prime Minister for advice to the President.
Chief Justice of the High Court: The Chief Justice of the High Court is appointed on the basis that the person to be appointed as the Chief Justice shall not be from the concerned State but from some other State. Although the selection is decided by the collegium. High Court judges are recommended by a collegium consisting of the CJI and the two senior-most judges. However, the proposal for this is moved by the outgoing Chief Justice of the concerned High Court after consultation with his two senior most colleagues. This recommendation is sent to the Chief Minister, who in turn advises the Governor to forward the proposal to the Union Law Minister.
Main issues of Collegium System
Major issues related to collegium system Exclusion of the Executive: The complete exclusion of the executive from the judicial appointment process has created a system where some judges appoint other judges in complete secrecy. Also, they are not answerable to any administrative body due to which the wrong candidate may be selected ignoring the right candidate.
Chances of favoritism and nepotism: The collegium system does not provide any specific criteria for examining the candidate for the post of CJI, due to which it leads to wide possibility of favoritism and nepotism. This gives rise to non-transparency of the judicial system, which is extremely detrimental to the regulation of law and order in the country.
Against the principle of checks and balances: The principle of checks and balances is violated in this system. In India, all the three organs of the system-legislature, executive and judiciary work partly independently, but they also maintain balance along with controlling the excessive powers of any organ. The collegium system confers immense power on the judiciary, leaving little room for control and prone to abuse. ‘Closed-door mechanism’: Critics have pointed out that there is no official secretariat involved in the system. It is seen as a ‘closed door affair’, where no public information is available about the working and decision-making process of the collegium. Apart from this, no official minutes of the proceedings of the Collegium are also recorded.
Unequal representation: Another area of concern is the composition of the higher judiciary, where representation of women is very low.
Efforts to Improve the Appointment System:
An attempt to replace it by the ‘National Judicial Appointments Commission’ (through the 99th Amendment Act, 2014) was rejected in 2015 on the grounds that it was a threat to the independence of the judiciary. way forward Filling up of vacancies involving the executive and the judiciary is a continuous and collaborative process and there can be no time limit for the same. However, it is time to think of a permanent, independent body that guarantees judicial primacy but not judicial exclusivity, to institutionalize the process with adequate safeguards to maintain the independence of the judiciary. It must ensure independence, reflect diversity, demonstrate professional competence and integrity.
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