All about the Collegium System in India

What is the collegium system?

The collegium system is more like a system that considers the appointment and transfer of judges who belong to the High Court and Supreme Court. This collegium system was introduced due to executive interference when it came to judicial appointments. However, this system needs to protect judicial appointments from executive interference. This is due to reasons such as post-retirement appointments of judges. Despite the various criticisms and attempts to reform the transfer process and appointment, the collegium system remains stronger. Here is all about the collegium system in India that you need to know as well.

History of the collegium system in India

The history of the collegium system in India has undoubtedly been quiet over the years. Here is a detailed timeline for this.

Union of India vs SP Gupta, 1981 (First Judge Case)

The Supreme Court believed that consultation in the process of appointing judges does not require concurrence and should only involve the exchange of views.

Union of India vs Supreme Court Advocates-on-Record Association, 1993 (Second Judge Case)

The Supreme Court then reversed what they had previously mentioned about the consultation to mean concurrence. It was then decided that the CJI’s advice regarding the appointment of judges to the Supreme Court would be binding on the President of India. Furthermore, the CJI is supposed to consult with two senior colleagues before concluding the advice.

Third Judge Case, 1998

The court then expanded the collegium to a five-member body, which would also include the CJI and the four most senior judges of the court after the CJI. In this verdict, the Supreme Court laid down strict guidelines regarding the appointment of judges of the high courts and supreme courts, which is also currently known as the Collegium system. In this case, even if two judges give an adverse opinion, they will not send the recommendation to the government.

National Judicial Appointments Commission (NJAC) Act, 2014

This act was brought about to replace the existing collegium system that appoints judges. However, later, a five-judge constitutional bench declared it unconstitutional and nullified it. They claimed that it posed a threat to the independence of the judiciary.

How does the collegium system work?

Specific procedures need to be followed for the appointment of SC, HC, and CJI judges.

For the appointment of CJI

Initially, the President of India appointed the CJI and the other Supreme Court judges.

As far as the CJI is considered, the outgoing CJI also recommends who could be their successors.

In practice, seniority levels have strictly followed this policy ever since the 1970s suppression controversy emerged.

For the appointment of Supreme Court Judges

For other judges of the Supreme Court, the proposal is started by the CJI.

The CJI then consults the rest of the collegium members as well as the senior-most judge of the court who belongs to the High Court to which the recommended person belongs.

The consultees must then record their opinions in written form, which should form part of the file.

The collegium then sends this to the law minister, who forwards it to the Prime minister, who then advises the President.

For the appointment of High Court Judges

The chief justice of the high court is appointed based on the policy of having chief judges from outside the respective states.

The collegium then decides on the elevation.

High court judges are also recommended by a collegium that consists of the two senior judges and the CJI.

However, the proposal was initiated by the outgoing Chief Justice of the High Court concerned in consultation with two of the most senior colleagues.

The recommendation is then sent to the Chief Minister, who advises the governor to send the proposal to the Union law minister.

Why is the collegium system criticized?

Well, a few criticisms have been raised against the collegium system of India. Here are a few that have come to light.

Judicial vacancies

It has struggled to keep up with the stagnant vacancies in the judiciary, which has led to the pending pile of cases. As of August 2022, there were still three vacancies in the Supreme Court as compared to the 380 vacancies in the High Courts.

Nepotism charges

The collegium system does not provide any specific conditions for testing candidates who have applied for the CJI post, which could lead to a wide range of favouritism and nepotism. It also leads to unfair appointments.

Lack of representation of women

The other primary concern is the composition of the higher judiciary, where there are women who are relatively underrepresented in the higher judiciary levels.

Transfer of judges

Currently, the Supreme Court and the government do not disclose anything related to the transfer of judges, which could threaten judicial independence.

Lack of transparency

The Indian collegium system is often criticized for its lack of transparency, which is the primary reason why most of the decisions are not disclosed to the public.

Latest Developments in Collegium System

As far as the latest developments are concerned, specific changes have been brought about. They are as follows:

The President of India is required to consider the opinion of the CJI present in judicial appointments.

The CJI’s opinion is binding on the government. It must also be formed after consultation with a collegium consisting of at least four senior Supreme Court judges.

Even if two judges give an adverse opinion, then the recommendation should not be sent to the government.

Conclusion

The system of appointments should also be improved as the High Courts all across the country need more than 400 judges. A future rise in pending cases could only be tackled if the executive and judiciary are willing to negotiate with a citizen-centric spirit. For that, the reformation of the collegium is the right step forward. If you are curious to know more about such topics, then visit our Chrysalis blog section, where you can get to know everything necessary about these topics.

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