Collegium system: Appointment of supreme court judges
What is Supreme court of India collegium system?
The word ‘collegium’ literally means ‘a group where each member exercises approximately equal power’. A collegium is a system through which judges of supreme court and high court are appointed and transferred by an institution comprising judges. Collegium has not been mentioned in the Constitution. It is a system evolved by Supreme Court’s judgements.
Structure of the Collegium:
The Collegium of the Supreme Court is headed by the Chief Justice of India and comprises of 4 other senior most judge of the Court.
The collegium of High Court is headed by the Chief Justice of High Court and comprises of 4 other senior most judges of the High Court.
The recommendations of Collegium of High Court require approval of CJI and Supreme Court Collegium before it reached the government.
The government can return the recommendations of Collegium for reconsideration. But if the collegium reiterates its recommendations, then the government is bound to approve it.
Constitutional Provisions:
Article 124(2) of the Indian Constitution provides that the judges of the Supreme court are appointed by the President after consultation with a number of judges of Supreme court and of the high courts in the states.
Article 217 of the Indian Constitution states that the judge of a high court shall be appointed by the president in consultation with the chief justice of India and governor of the state. Further, the chief justice of respective high court should also be consulted except in case of his/her own appointment.
Evolution of the Collegium System:
1. First Judges case (1981) (S.P. Gupta v/s Union of India):
Also known as ‘the transfer of judges case’. The court ruled that “consultation” does not mean “concurrence”. It declared that recommendations of appointments can be refused for strong reasons. This gave the Executive an upper hand over judiciary in judicial appointments.
2. Second Judges case (1993) :
The collegium system was introduced, the court revised its earlier ruling and held that “consultation” really meant “concurrence”. It meant the advice tendered by the chief justice of India is binding on the president. But the chief justice would give his advice after consulting 2 of his senior most colleagues.
3. Third Judges case (1998):
Supreme Court expanded the collegium to a five-member body, comprising the CJI and 4 other senior most judges of supreme court.
Arguments against the collegium system:
1. Enormous power to judges, possibility of its misuse.
2. Scope for nepotism. Overlooks several talented advocates and judges.
3. No official procedure or any written manual. The functioning of collegium is ambiguous.
4. Closed-door affair, lack of transparency. Raises concerns of propriety, self-selection and nepotism.
National Judicial Appointments Commission Act (99th amendment) (NJAC), 2014:
Under a new article, Article 124A, NJAC aimed to make the appointment and transfer of judges of supreme court and high court more transparent. Appointment will be made by a commission comprising members from judiciary, legislature, and civil society.
According to NJAC, the commission would comprise:
1. The Chief Justice of India (Ex-officio Chairperson)
2. 2 other senior judges of the supreme court (ex-officio)
3. Law and justice minister of India (ex-officio)
4. 2 eminent persons: nominated by a committee comprising: The Chief Justice of India, The Prime Minister of India, and the leader of the opposition in Lok Sabha. Provided, one eminent person would be from scheduled castes/ scheduled tribes/ OBC/ minority community/ or a woman.
Eminent persons nominated for a tenure of 3 years and not eligible for re-nomination.
Fourth Judges case (2015):
The Supreme Court upheld the primacy of the collegium and struck down the National Judicial Appointments Commission Act (NJAC) as unconstitutional. The court held that the act gave the government immense power over judiciary in appointment of judges, and an encroachment upon the independence of judiciary and violated the basic structure.
Sources:
Indian Polity by M Laxmikanth
Wikipedia
Date: 04 September 2021