COLLEGIUM SYSTEM: HISTORY AND JUDICIAL DEVELOPMENTS
THIS ARTICLE WAS WRITTEN BY HITARTH DIXIT, A STUDENT OF RAJIV GANDHI NATIONAL UNIVERSITY OF LAW
INTRODUCTION
Independence of judiciary is one of the prominent features of democracy. And the power to appoint judges of Supreme Court and High Court is vested with the President under Article 214(2) and 217 respectively. Article 124 of the Indian Constitution provides the manner of appointment of the CJI and the Supreme Court judges.[i]Article 217 of the Indian Constitution provides the manner of appointment of the High court judges.[ii]
The collegium System is a system made for appointment and transfer of judges decided by a forum which constitute the CJI and four senior most Judges of the Supreme Court. There is nothing mentioned about it in the Indian Constitution. It was brought by the 99th amendment act by striking down National Judiciary Appointment Commission(NJAC) in 2015.This article will give a comprehensive study of the historical background and the judicial developments regarding the Collegium System.
HISTORICAL BACKGROUND AND JUDICIAL DEVELOPMENTS
The appointment of Chief Justice of India had always been unparallel. For Instance, during 1950-73 the senior most judge was appointed as CJI. But in 1973, the Indira Gandhi led government appointed A. N. Ray as the CJI superseding the then 3 senior most judges. Again in 1977, the Indira Gandhi led government appointed M. U. Beg as the CJI by superseding the then senior most judges. The appointment of CJI had been unparallel, until in 1993 SC gave its judgment in “Supreme Court Advocate on Record Association vs. Union of India” that the senior most judge of the SC should be appointed as the CJI and the discretionary power was curtailed.[iii]
In 2015 Supreme Court of India declared National Judicial Appointment Commission unconstitutional by 92nd constitutional amendment. From that day the appointment and transfer of judges is taken care by the Collegium System. One must note that before the debate of NJAC and Collegium System started
THE THREE JUDGES CASES
The Collegium System was created over three landmark judgments.
First Judge Case-
The ‘S. P. Gupta vs. Union of India’ case 1982 is also known as ‘First Judge Case’.
In the 4:3 majority judgment it was declared that the “primacy” of the CJI’s recommendation to the president can be refused on “cogent reasons”. The majority held that the meaning of the term, ‘consultation’ is not ‘concurrence’ and the power solely and exclusively lies in the President. This brought fundamental change in favour of the executive having primacy over judiciary for the next 12 years.[iv]
Second Judge Case-
The ‘Supreme Court Advocate on Record Association vs. Union of India’ case 1993 is also known as ‘Second Judge Case’.
In a nine judge bench, majority verdict given by Justice J. S. Verma stated that ‘justiciability’ and ‘primacy’ requires the prime role of CJI in appointment of judges.
It repeals S. P. Gupta judgment saying “the role of the CJI is primal in nature because this being atopic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary”[v].
Third Judge Case-
In 1998, President K. R. Narayanan issued Presidential reference to the SC to clarify the meaning of ‘consultation’ under article 124,217 and 222 of the Indian Constitution. The main question is that whether ‘consultation’ means the opinion of the CJI formed after consulting with number of judges or ‘consultation’ means the sole opinion of the CJI.
In reply to this the SC said held that the word consultation meant consultation with the plurality of judges including the CJI, the sole opinion of the CJI does not suffice and encompass the term consultation under these articles[vi].SC also issued 9 guidelines for the functioning of the Coram for appointment and transfer of judges of the higher judiciary which is what known as the Colleguim System. Besides in 1998, nine judge bench headed by S. P. Bharucha reinforced the concept of primacy of the highest judiciary over the executive, this is called the ‘Third Judge Case’[vii].
NATIONAL JUDICIARY APPOINTMENT COMMISSION
The government of India felt lack of accountability and transparency in the appointment of judges to higher judiciary, so it introduced NJAC through 99th amendment act in August , 2014. This commission is a proposed body which looks into the transfer and appointment of judges of higher judiciary. This body was established by amending the constitution of India through 99th constitutional amendment.
Composition of the NJAC-
- Chief Justice of India
- Two senior most judges of the SC
- Law Minister(ex officio member)
- Two Eminent member hail from India(selected by a committee consisting the CJI, the PM of India and the leader of opposition in Lok Sabha)
On 16 October, 2015 by majority opinion of 4:1, the Supreme Court struck down NJAC restoring old Collegium System for appointment and transfer of Judges. The SC declared that NJAC is interfering with the judiciary by the means of executive. It also mentioned that the NJAC tempered the basic structure of the Constitution of India whereas the parliament has no power to do so.
However, SC acknowledged lack of transparency and the lack of prescribed norms regarding eligibility criteria which the judiciary will rectify.
CONCLUSION
It is evident to see that there is no accountability in the appointment of judges. On one hand the collegiums system restricts the interference of the executive in the appointment process which is good because he judicial brain can judge the competency of a person in law , but on the other hand the appointment of judges under this system is completely non-transparent and the merits and demerits of a candidate is also not recorded which makes the mockery of the entire judicial process. The President of India has actually been divested of his power by the SC. Because, he has no choice but to accept the name, even after he rejected it once, if it’s reiterated by the Collegium. Then he’s bound to accept. That’s precisely what happened in the case of KM Joseph , whose name was rejected by the President inter-alia on the grounds of being too junior (42nd amongst HC judges); yet he was force appointed by the collegium. [viii]The collegiums system supporters may argue that this is the best way because it keeps the primacy of the judiciary but there is a need to change the current system of appointing the judges to the higher judiciary. The collegiums system must not see itself above the safeguards of transparency and accountability as they are the backbone of democracy.
[i] INDIAN CONST. article 124
[ii] INDIAN CONST. article 217
[iii] https://shodhganga.inflibnet.ac.in/bitstream/10603/187786/8/08_chapter%202.pdf
[iv] S. P. Gupta v. Union of India , 1981 Supp.SCC 87 : AIR 1982 SC 149
[v] Court Advocate on Record Association vs. Union of India ,(1993) 4 SCC 441 : AIR 1994 SC 268
[vi] Samarth Luthra , The Collegium System in India – History, Status Quo and Alternatives, LatestLaws.com(21 July,2020, 7:36 PM), https://www.latestlaws.com/articles/the-collegium-system-in-india-history-status-quo-and-alternatives-by-samarth-luthra/
[vii] Special reference No. 1 of 1998,Re,(1998) 7 SCC 739 : AIR 1999 SC 1 : (1998) 4 LLN 596
[viii] https://theprint.in/opinion/low-seniority-k-m-joseph-wont-have-say-in-hc-judges-appointment/94697/
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