The Collegium System is a system under which appointments/elevation of judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex Court are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. There is no mention of the Collegium either in the original Constitution of India or in successive amendments.
This system has originated through the “three judges case“ which interpreted constitutional articles on October 28, 1998.
The power to make appointments to the Supreme Court and transfer judges between High Courts was originally vested in the President under Articles 124 and 217. The President, acting on the advice of the council of ministers was required to mandatorily “consult” certain authorities, including the Chief Justice of India (CJI), and, when making appointments to a High Court, the chief justice of that court. The provisions came to be interpreted in a number of cases.
Originally, in 1977, in Union of India v. Sankalchand Himatlal Sheth 1977 AIR 2328, while interpreting the word “consultation,” the Supreme Court ruled that the term can never mean “concurrence”. Hence, the Chief Justice’s (CJI) opinion was not interpreted as binding on the executive, though it was held that the executive could depart from his opinion only in exceptional circumstances, and, in such cases, its decision could well be subject to the rigors of judicial review.
In 1981, in the S.P. Gupta v President of India and others AIR 1982 SC 149 or the First Judges Case, the court once again endorsed this interpretation. But, in the Supreme Court Advocates – on Record Association v. Union of India 1993 4 SCC 441 or the Second Judges Case, the court overruled its earlier decisions. Now “consultation” was read as “concurrence”, and the CJI’s view was given primacy, as it was believed that he is “best equipped to know and assess the worth” of candidates. Though the CJI was to formulate his opinion through a body including two senior most judges of the Supreme Court described as the collegium.
Further in 1998, In re Presidential reference AIR 1999 SC 1 or the Third Judges Case, it was held that the collegium will comprise, in the case of appointments to the Supreme Court, the CJI and his four senior-most colleagues — and, in the case of appointments to the high courts, the CJI and his two senior-most colleagues. Additionally, for appointments to the high courts, the collegium must consult such other senior judges serving in the Supreme Court who had previously served as judges of the high court concerned.
The government, wanting to reform the appointment procedure brought the National Judicial Appointments Commission Act (NJAC) in 2014 through the 99th constitutional amendment to replace the collegium system. It comprised of the CJI and 2 other senior most judges of the supreme court, union law minister, and two civil society experts or eminent persons. It was challenged in the court which said that as the act allowed political interference in the appointments of judges, it was violative of the principle of separation of powers which is part of the basic structure of the constitution. The act was held unconstitutional and void.
FUNCTIONING OF THE COLLEGIUM
The Collegium sends the recommendations of the names of lawyers or judges to the Central Government. Similarly, the Central Government also sends some of its proposed names to the Collegium. The Central Government does the fact checking and investigate the names and resends the file to the Collegium.
Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval. If the Collegium resends the same name again then the government has to give its assent to the names.
Recommendations of the collegium are binding on the government only if they are backed by consensus. If there is any dissent within the collegium, the CJI is expected to communicate such dissenting view, along with the recommendation, to the government. If there is a dissent in the collegium regarding a recommendation, the government can ask the collegium to reconsider it. The collegium has to reiterate the recommendation by consensus, only then it is binding on the government.
THE GROUNDS OF OBJECTION
The collegium system has always been a bone of contention between judges and jurists alike. It is alleged that the system is unconstitutional as it is an invention of the judiciary and that the third judges case was a complete deviation from the text of the constitution which was highly misinterpreted. The constitutional makers had no intention to give primacy to the CJI, it was only necessary to consult him, his concurrence was not mandatory. Also, that the judiciary, in order to enjoy unfettered powers has devised this system by illegally modifying the process originally laid down in the constitution.
The Law Commission in its 214th report said that the word collegium is not found anywhere in the Constitution and was added through the S.P Gupta case. The court in adding a new word to the constitution went beyond its mandate which is to interpret the original text as literally and as accurately as possible.
In criticism of the Supreme Court striking down the NJAC Act as unconstitutional, the former Finance Minister Arun Jaitley wrote that “both (Article 124 and 217) provide for the appointment to be made by the President in consultation with the Chief Justice of India. The mandate of the Constitution was that Chief Justice if India is only a ‘Consultee.’ The President is the Appointing Authority. The basic principle of interpretation is that a law may be interpreted to give it an expanded meaning, but they cannot be rewritten to mean the very opposite,” while alleging that the current system perpetrated the “tyranny of the unelected.”
The system of judges appointing judges is also thoroughly undemocratic as the people’s representative have no say in it. The whole power is monopolized in the hands of a few. The principles of accountability and transparency have taken a major setback.
A transparent process of appointments is indispensable for the independence of judiciary. But the collegium system is completely murky and opaque. There is no written manual for functioning, no definite selection criteria, the decisions already taken are arbitrarily reversed, the records of meetings are not generally published. Nobody actually knows how judges are selected, what role the criteria like work, reputation, integrity and experience play in the process.
Further, the process also suffers from “Kin syndrome”, a term coined by Justice V.R Krishna Iyer where appointing judges choose candidates in their own image. The allegations of nepotism, patronage and favoritism are rife. The process promotes mediocrity as neither talent nor experience are treated as the criteria for selection because what matters is connections and relations. It has been found in various reports that the whole judiciary is run by just a few hundred privileged families. New talent and fresh perspectives are ruthlessly excluded from the system.
In January 2019, the court superseded 3 senior most judges while recommending names for elevation to the Supreme Court abandoning a long standing practice of respecting seniority in appointments.The decision went against the Supreme Court’s own guidelines laid in the third judges case where it held that unless there is a very strong justifiable reason to make a departure, the principle of seniority must always be respected.
Over and above other technical faults, the system has proved inefficient and slow. The huge number of vacancies in the judiciary have not been filled and the problem of pendency of cases has not been solved. The public keeps suffering and its trust and faith in the judicial system is slowly deteriorating.
The Indian judiciary has always played a proactive role in safeguarding democracy and protecting the rights of citizens. It has always been in favour of providing checks and balances against all organs of government for preventing them from misusing their powers to the detriment of the public and the spirit of democracy. Therefore, it is seen as highly ironic and hypocritical that it is resisting every small-big step that is being taken to improve its own functioning and bringing transparency and accountability in the system.
In recent times, the judiciary has enjoyed great public legitimacy, it even became an object of popular affection as it gave a plethora of popular judgments and established its image as the guardian of Indian citizens against the tyranny and apathy of the corrupt Indian political class. If now it continues to shield itself from every kind of criticism and if every call for improvement in the system keeps falling on deaf ears, it will soon lose everything it has deservedly gained by standing tall and brave against majoritarian governments.
It should not forget that independence, impartiality and fearlessness of judges are not private rights of judges but citizen’s rights. The powers enjoyed by the judiciary today are a function of the legitimacy derived from people’s faith and affection. As soon as the faith disappears, it will not be very difficult to take away the powers.
The judicial appointment process was once described by Justice P.N. Bhagwati, as “a sacred ritual whose mystery is confined only to a handful of high priests”. There should be no place for a system in a democracy which provides for no transparency and accountability in a process as central to the independence of judiciary as the appointment of judges.