Theme : Judiciary
Paper : GS - 2
The incumbent Chief Justice of India (CJI), Justice U.U. Lalit, had set in motion the procedure contemplated for the collegium of the Supreme Court which is enshrined in the Memorandum of Procedure of 1999. He also forwarded the name of Justice D Chandrachud as his successor. This has again put in focus the institution of the ‘collegium’ system that rules the appointments in higher judiciary.
TABLE OF CONTENT
- Constitutional Provisions
- Procedure for Various Judicial Appointments.
- Collegium & Its Evolution
- Road Ahead
Context : The incumbent Chief Justice of India (CJI), Justice U.U. Lalit, had set in motion the procedure contemplated for the collegium of the Supreme Court which is enshrined in the Memorandum of Procedure of 1999. He also forwarded the name of Justice D Chandrachud as his successor. This has again put in focus the institution of the ‘collegium’ system that rules the appointments in higher judiciary.
Constitutional Provisions :
Article 124: Establishment and constitution of Supreme Court:
- “There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.
- Every Judge of the Supreme Court shall be appointed by the President by warrant under his/her hand and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the States as President may deem necessary for the purpose and shall hold office until he attains the age of 65 years.”
- In judicial appointments, it is obligatory for the President to take into account the opinion of the Chief Justice of India.
Procedure for Various Judicial Appointments :
The President of India appoints the CJI and the other SC judges.
As far as the CJI is concerned, the outgoing CJI recommends his successor.
In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
For SC Judges:
For other judges of the SC, the proposal is initiated by the CJI.
The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
The consultees must record their opinions in writing and it should form part of the file.
The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For Chief Justice of High Courts:
The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States.
The Collegium takes the call on the elevation.
High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Collegium & Its Evolution :
‘Collegium’ is an in-house mechanism of higher judiciary in India, created for the appointment and transfer of judges, that has evolved through judgments of the Supreme Court (SC), and not by any Act of Parliament or Constitutional provision.
Evolution of the Collegium System:
1. First Judges Case (1981):
- It declared that the “primacy” of the Chief Justice of India (CJI)'s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
- The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
2. Second Judges Case (1993):
- SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
3. Third Judges Case (1998):
- SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues while HC collegium is led by its Chief Justice and four other senior most judges of that court.
- Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
- Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
- The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court. It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
Criticism of Collegium :
- Time and again, it has been widely commented that the collegium is an extra-constitutional or non-constitutional body brought in force by judgments of the Supreme Court virtually wresting the power of appointment of judges. The Constitution of India gave the last word to the President of India but mandated consultation with the Court. These judgments give the last word to the Court mandating consultation with the government.
- Not only that, what makes the problem even worse is that there is no seat in the collegium for any non judge — neither from the executive, the Bar or anywhere else. In other words, there is no one to offer suggestions or raise questions or even to observe what is going on.
- In 2014, Parliament by unanimity backed by State legislatures enacted the National Judicial Appointments Commission (NJAC); it comprised three judges, the Law Minister and two eminent persons to handle the task of appointing judges.
Road Ahead :
- It is time to revisit this question and secure a better, broad-based and transparent method of appointing senior judges to the High Courts and the Supreme Court.
- While doing so, we may also ask why there have been no appointments from the category of distinguished jurists which Article 124 of the Constitution contemplates. Appointments to the top court seem to be the preserve of judges from the High Courts with a handful of appointments from the Bar. Surely some nodding acknowledgement should be given to a specific provision made by the founding fathers in the Constitution. In all these years we must have produced many distinguished jurists who can be appointed to SC as justices.
- Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, so it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
- The new body/ mechanism for judicial appointments and transfer should ensure judicial independence, reflect diversity, demonstrate professional competence and integrity.
- Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.
1. What is Collegium?
Answer : ‘Collegium’ is an in-house mechanism of higher judiciary in India, created for the appointment and transfer of judges, that has evolved through judgments of the Supreme Court (SC), and not by any Act of Parliament or Constitutional provision.
2. What is the First Judge Case (1981) ?
It declared that the “primacy” of the Chief Justice of India (CJI)'s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.