The Collegium System is a system under which the appointment and transfer of judges and lawyers to the Supreme Court and the High Courts, as well as the transfer of judges to the High Courts and the Apex Court, are decided by a forum of the Chief Justice of India and by four senior judges of the Supreme Court. This Research Paper traces back to how this system came into being, as there is no constitutional provision(s) concerning the appointment of judges vis-à-vis the collegiate system, by going into the details of the famous ‘three-judge cases’. Knowing the present state of this framework by addressing the benefits, such as the independence of the courts and the demerits of the structure, such as the existence of latent nepotism, as also stated by the Law Commission of India. The aim of this paper is also to evaluate this system of appointment of judges against systems followed in other countries and to analyze critically another method of appointment, the 99th Constitution Amendment Act, which included the National Judicial Appointments Commission (declared unconstitutional by the SC itself) (maybe the Fourth Judge case).
Lastly, an understanding of the glaring, never-seen-before problem of the collegium system is sought.
The Collegium System in India – History, Status Quo and Alternatives
The Constitution of India has articulated the concept of the independence of the judiciary. The appointment of judges to the High Court and the Supreme Court was, however, left to the King, who works on the recommendation and assistance of the Council of Ministers. The President shall behave in compliance with the guidelines. Under initial scrutiny, the appointment of judicial seats appears to be carried out by the Executive and the judiciary remains independent. The only recourse that the President has in such a case is to wait an indefinite period for the decision of the Council of Ministers. Nonetheless, such an action would make the President vulnerable and open to litigation.
The executive government has demonstrated a propensity to discourage existing policies from time to time. In 1973, a judgment of 7:6 was imposed by the 13 judges of the Keshvananda Bharati trial. The Indra Gandhi led the Government away from the convention of appointing the highest judge as to the CJI and appointed Justice A.N. Ray as the CJI, replacing three other senior judges. The three judges who were ignored were 7 in plurality relative to 6 in the minority. Justice Ray was a minority of 6 on the side that favoured the Council of Ministers to say so. The ignored judges therefore retired. Likewise, in 1977, Indra Gandhi led the government and selected Justice M.U. Beg instead of Justice Khanna, who was older, largely believed because of the opinion of Justice Khanna in the case of ADM Jabalpur. Luckily, this has never occurred yet, and until now, the 47th CJI-Justice S.A. Bobde has pursued the tradition of naming the top prosecutor.
Issues surrounding the validity of words such as consultation have time and again made their way before the supreme court. The key case laws of this context are referred to as the three trials of the court.
The First Judge Case – S.P. Gupta v. Union Of India
The President depended on the opinion of the Chief Justice of the High Court of Delhi as well as the advice of the CJI and did not extend the tenure of the additional judge to the High Court of Delhi. The problem was whether the President was constrained by the guidance of the CJI?
The Court held, by a plurality of 4:3, that the non-extension is true and that there is no primacy of one authority over another, i.e. the opinion of CJI is not more important than the Chief of the High Court according to Article 217.
The majority claimed that the sense of the word ‘consultation’ is not ‘concurrence’ and that the authority rests purely and exclusively with the President. (Who, as mentioned above, works on behalf of the Executive Government)
This judgment was criticized for taking away the little independence that had arisen from the practice of consulting the CJI, the Chief Justice of the High Court and the Governor. At the other side, the government is fully responsible to the public, while the judiciary is not.
The Second Judge Case – Supreme Court Advocates-on-Record Association v. Union of India
In 1993, the following questions arose for consideration before a 9 member bench of the Supreme Court-
1. Is the opinion of the Chief Justice of India on the appointment of judges to the Supreme Court and the High Courts as well as on the transfer of high court judges entitled to primacy?
2. Was the question, including the argument for the fixation of the Judge-Strength in the High Court, justifiable?
The case was put before the court by way of a PIL writ petition for the filling of judicial vacancies, the petitioners pleaded that the government is not in a position to serve the responsibilities of the higher judiciary on time and is therefore not skilled enough to select the most suitable judges.
The bulk is made up of J.S. Verma, Yogeshwar Dayal, G.N. Ray, Dr A.S. Anand, S.P. Hey, Bharucha, JJ. It held that the opinion of the CJI had primacy in the matter of the selection of the High Court and the Judges of the Supreme Court and that no selection may take place under certain conditions unless there was a consistency with the opinion of the CJI. The opinion of the CJI, in this case, is the opinion of the CJI, which has collectively taken into account the views of the two senior judges. The Court also ruled that the CJI would be the top judge of the Supreme Court found eligible to hold office.
This also claimed that the power of the high court judges should be decided.
Another main judgment, in this case, was that the recommendation for selection of judges in this case to the Supreme Court would be made by the Chief Justice of India and, in the case of the High Court, by the Chief Justice of the High Court and by the move of the Chief Justice of the High Court, by the CJI. The reasoning being that Article 74(1) being restricted to the discussions alluded to in 124(2) and 217(1), both of which had to be interpreted together, so, therefore, the awarding of exclusive powers to the Council of Ministers will circumvent the consultation specified. The interaction and harmonisation, therefore, of 74(1) with 124(2) and 217(1) shall be effected.
This stems from the case of Subhash Sharma v. Union of India in 1991. In so doing, the Supreme Court acknowledged that the judgment of the CJI would have a preponderant position and that the process practised until then had been an oversimplification of the Constitutional Framework.
The case of the second judge was widely celebrated because it overruled the effects of the case of the First Judge, which limited the independence of the judiciary.
Third Judge case – Re Presidential Reference
In 1998, the then President, K.R. Narayan, provided a Presidential reference in Article 217(1) and 222(1) to the term ‘consultation.’ The problem was if the consultation with the CJI was appropriate or if the CJI and other judges were consulted to complete the consultation process.
Nine of the judges held that the word consultation meant consultation with the majority of judges, including the CJI, that the single judgment of the CJI was not appropriate and used the expression consultation under those papers.
Many believe that the Supreme Court took the opportunity presented to them by the President to further extend their independence. This is used as both benevolence and bane. The decision was focused on the principle of what is commonly regarded as the Supreme Court Collegium.
The Supreme court ruled that the CJI had to meet an academic body composed of four other senior judges. The Composition then is, CJI + 4 senior judges of the Supreme Court. It was also held that if two of these other four judges give an unfavourable opinion to the CJI, the CJI would not propose the names to the government. The other provision was that the College would always have the next CJI, who, as stated above, is dependent on seniority and fitness to hold office.
This is used as both benevolence and bane. The decision was focused on the principle of what is commonly regarded as the Supreme Court Collegium.
The Supreme court ruled that the CJI had to meet an academic body composed of four other senior judges. The Composition then is, CJI + 4 senior judges of the Supreme Court. It was also held that if two of these other four judges give an unfavourable opinion to the CJI, the CJI would not propose the names to the government. The other provision was that the College would always have the next CJI, who, as stated above, is dependent on seniority and fitness to hold office.
LIMITATIONS OF THE COLLEGIUM SYSTEM
1. If judges nominate judges, the nature of government is at stake.
2. If the architects of the Constitution had considered the benefits of this method, they should have articulated it in the Constitution. Yet the college is a term that has developed from the courts to the courts itself.
3. The Law Commission’s study notes that the Collegium Program is an institution of systematic nepotism and political patronage. That service is paid in return for a reward and, eventually, the son of a lawyer winds up being a lawyer.
Recent landmark judgment addressing Collegium System
In a significant move to combat these denunciations, the Supreme Court recently upheld a Delhi High Court judgment in the Indian Supreme Court v. Subhash Chandra Agarwal, Central Public Information Officer, in which the office of the CJI was declared a public authority under the RTI Act. It has also been said that the office of the CJI is the same as that of the Supreme Court.
According to the Supreme Court, Accountability does not impair judicial independence. The also said the independence of the judiciary and the transparency go hand in hand. Now, the apprehension and limitations about an irresponsible judiciary are eliminated To the extent that the test of public interest and the test of privacy must be carried out to provide the details of the ‘inputs’ as characterized by the Khanna Justice.
Although the information is to be revealed only after counting for a multitude of variables, this judgment puts the office of the Supreme Court in the public eye. It is just a sigh of relief in terms of openness, and the feasibility and independence of the reform remain a concern.
This special legal status is found only in India. In the United Kingdom, which is known as the Mother of Democracy, the Judicial Appointments Commission (JAC) looks after the selection process for candidates for the judiciary In Tribunals and Courts. The JAC consists of a total of fifteen members; out of those three members will be Judges Committee members, and the remaining twelve members (including Chairmen) will be selected by open competition. In addition to JAC, there is another authority known as “Judicial Appointments Conduct and Ombudsman” to examine the JAC appointment complaints and the discipline or conduct of the judiciary.
In South Africa, which follows the footsteps of great men like Mahatma Gandhi and Nelson Mandela, after consulting the 23-member “Judicial Services Committee” the president nominates the judges.
The Judicial Services Commission is composed of judges, lawyers, legal scholars, parliamentarians and eminent persons appointed as members by the president. The committee members will proceed throughout parliamentary pleasure.
In Italy, which is one of the old imperial states, their highest court is the Federal Constitutional Court, which consists of a total of 15 members. Of the 15 judges, 1/3rd shall be named by the country’s president, 1/3rd by the parliament in joint session and 1/3rd by ordinary and administrative courts of the highest instance.
It seems like all the judiciaries of many influential countries are enveloped by the intervention of the executive. In India, the issue with the appointment of judges would seem to be the existing judges themselves.
India ‘s parliament thought that the college structure lacked accountability and openness as such by taking NJAC (National Judicial Appointments Commission) into the year August 2014 through the 99th amendment to the Indian constitution. The NJAC consists of a total of six members, India’s Chief Justice will be its chairmen, two other senior Supreme Court judges will also be named as members, the Central Law Minister will serve as an ex officio member and two eminent Indian persons (selected by the Supreme Court’s CJ committee, India’s Prime Minister and Lok Sabha’s opposition leader) will be another member executive argues that the judiciary does not have authority to perform the function of nominating judges to the higher judiciary. It has been pointed out that it is the Parliament alone that serves this country’s citizens and people, and has the sole authority to legislate on matters.
In the selection and appointment of judges, Mr Justice M.N. Venkatachaliah, who headed the National Commission to review the work of the Constitution, also recommended a five-member National Judicial Commission to introduce a broad consultative process.
Justice V.R. Krishna Ayer shared the collegium’s inability to choose the best available judge when writing forwards to “Story of a Chief Justice,” a similar view held by Justice Rumal Paul, Justice S.S. Lodhi and Sir Nariman. Justice Varma, who headed the nine-judge bench opposing the popularly recognized Second Judge Case, also changed his point of view and said it was time to reform the Collegium System.
NJAC Case – Supreme Court Advocates on Records Association v. Union of India
The constitutionality of the above mentioned NJAC came into question, and the majority of 4:1 found the NJAC unconstitutional. The majority view was that the question of appointment has a strong connection with the independence of the judiciary provided for in Article 50 and throughout the Republic of India ‘s constitutional past and practice.
Independence of judiciary and division of powers is considered to be the two main factors by J. Kehar on why the NJAC was struck. J. Kurian Joseph agreed and held the view that ‘unless necessary, things should not be multiplied’-Entia Non-Sunt Multiplicanda Sine Necessitate.
Dissenting Opinion. Chelameswar does not find the 99th Constitutional Amendment Act to violate the constitution since it does not grant full authority to nominate or transfer judges to the president. The NJAC guarantees that no unacceptable candidate is nominated as long as 2 commission members find the nominee to be incompetent. He added that the involvement of the minister of union law does not in any way weaken the integrity and independence of the judiciary, but his absence would seriously compromise the people’s option of a representative government and would kill the fundamental function of checks and balances.
Modern Problem requiring Modern Solutions
Once again, the collegium system was deemed operational, and the NJAC struck down. But a new, unseen-before-problem is now flickering through the network. An article was written for Indian Express by a Supreme Court Retired Judge J. Madan B Lokur says, “It seems to me that the illegal NJAC is raising its head and is now the Beast of Frankenstein. Two prominent persons postulated by the NJAC are no longer needed to provide advice.
The CJI wrote letters to the Ministry of Union Law that many of the College’s recommendations were still pending and the vacancies in the High Courts were as mammoth as 37 per cent, and it was also reported that the College still had to agree on some recommendations as some input had yet to be obtained from the Government. The article then states that the Union government now seems to be the one calling the shots because of these fallacies in the system.
The Collegium System also proposed that one additional Allahabad High Court judge be made a permanent judge, in this respect the Union dismissed the college’s reports and recommendations. The normal response should have been to lodge a writ of quo Warranto, but no one objected instead-not a single letter. This secrecy has exerted an unwarranted influence upon the Executive.
A question like this only emerged when the zeal of the judiciary was not matched later with equal intervention when resolving all the above cases.
Conclusion
Whether the situation improves after the RTI-CJI judgment remains to be seen, but it is obvious that the appointment of judges does not have accountability. The people managing the appointments are stripped of proper duty and oversight. Not only has the court refused to enforce the college scheme, but they are not also aware of it. In the other side, the Union government seems to be running point and the intrusion is returning. The Constitution of India struggles and needs urgent attention.
For more Judgements– CLICK HERE.
Lawyers Gyan is now on Telegram (t.me/LAWYERSGYAN). Follow us for regular legal updates. Follow us on Instagram, LinkedIn, Facebook & Twitter or join our WhatsApp group.
Disclaimer:
Lawyers Gyan has no control over above-listed items as it is directly from the customer or taken from other sources. Despite our best efforts, some of the content may contain errors. You can trust us, but please conduct your own checks too. In case of any discrepancy please write to lawyersgyaan@gmail.com.
