Supreme Court Collegium

The Collegium system, governing the appointment and transfer of judges in India's Supreme Court (SC) and High Court (HC), has evolved through Supreme Court judgments rather than being rooted in the Constitution based on their interpretation of the term "consultation" in Articles 124 and 217. The First Judge Case deemed consultation does not mean concurrence, while the Second Judge Case reversed this, making the Chief Justice of India's advice binding. The Third Judge Case expanded the collegium to four senior judges. The Fourth Judge Case declared the National Judicial Appointments Commission(NJAC) unconstitutional. The collegium system faces criticism for lack of transparency, nepotism, and inefficiency. The reforms needed include making the collegium open to RTI (Right to Information), disclosure of criteria to appoint judges . Also,a permanent and independent body is needed to institutionalize the process of appointment of judges with safeguards, ensuring judicial independence and diversity.

The Collegium system functions to appoint and transfer judges in both the Supreme Court and High Court. It is not mentioned in the constitution and it has evolved through Supreme Court judgments in various cases. These cases primarily revolved around the interpretation of the term "Consultation" in Articles 124 and 217.

According to Article 124, the President appoints the Chief Justice after consulting judges from the Supreme Court and High Courts as deemed necessary. Similarly, Article 217 dictates that the Chief Justice of the High Court is appointed by the President after consulting with the Chief Justice of India and the relevant state Governor. The challenge was interpretation of the word "consultation" and whether it means "concurrence" or not.

The collegium system originates from Supreme Court rulings on the interpretation of "Consultation" in Articles 124 and 217.

• First Judge Case(1981):
  • The Supreme Court decided that consultation in judge appointments doesn't require concurrence but only involves the exchange of views.
• Second Judge Case(1993):
  • The Supreme Court reversed its previous decision, defining consultation to mean concurrence.
  • It mandated that the CJI's advice on Supreme Court judge appointments is binding on the President.
  • The CJI must consult with two senior colleagues before providing such advice.
• Third Judge Case(1998):
  • The CJI is required to consult a collegium of the four most senior Supreme Court judges.
  • Even if two judges disagree, the recommendation should not be sent to the government.
  • High Court Collegium:It is Led by the Chief Justice of High Court and the two most senior judges of that High Court
    • It sends it recommendation to Collegium of Supreme Court
• Fourth Judge Case(2014):
  • National Judicial Appointments Commission (NJAC) Act, 2014 passed by the 99th Constitutional Amendment Act: It was brought to replace the present collegium system for appointing judges by adding executive in the decision making process.
  • Violation of Basic Structure:The Supreme Court declared it as unconstitutional as it posed a threat to the independence of the judiciary as judiciary was not adequately represented in the Commission. Members included the CJI, Two Senior Most Judges, Law Minister and two other eminent persons. These two eminent persons were to be nominated by CJI, PM & Leader of Opposition.

However, in its NJAC Judgement, the Supreme Court admitted faults of collegium and asked the Centre to draft the new memorandum for appointments of judges in consultation with the Chief Justice of India. The Draft Memorandum of Procedure is as follows:

• Prime Criteria for appointment of judges in the Supreme Court is "seniority", while for High Court, its "merit and integrity".
• A Performance Appraisal system for judges should be made.
• A Permanent Secretariat for maintaining records and scheduling meetings of Collegium should be there.
• A Prior Notice of Vacancies of judges to be put up on the website of courts at the beginning of the year for appointments.
• The Government would have power to raise objections on the grounds of national security or public interest to the collegium.

• Separation of Powers- The collegium system maintains the independence of judiciary
• Avoid Politicisation of judiciary: Example: In the USA, due to politicisation of judges, its SC overturned progressive decisions like Roe vs Wade(Abortion rights).
• Domain Expertise: Judiciary is a subject which requires domain expertise. The executives are not specialists on this topic.
• Principle of Natural Justice: The government itself is a major litigant. To give them a say in the appointment of judges would be akin to fixing courts.
• Secrecy is needed for proper and effective functioning of the collegium institution
• Consultative Process: The Collegium is not authoritative and makes recommendations after consulting senior judges.

• Opaque process: The collegium meeting is a closed-door affair without a formal and transparent system.
• Law Commission's 230th Report said that nepotism and personal patronage is prevalent leading to Uncle Judge Syndrome.
• According to a former judge Mr. Chelameshwar, the collegium system suffers from lack of "transparency, accountability and objectivity". It gives priority to seniority rather than merit.
• Time: Appointment functions take a lot of time which affects efficiency of courts and burdens the judiciary.
• Undemocratic :The process is undemocratic because it is without any public representation or elected representative's role.
• Against Separation of Powers:The practice of Judges appointing judges is against the principle of separation of powers and erodes the Constitutional checks and balances leading to judicial supremacy over other branches.
• Marginalization:The collegium is not representative of the vulnerable section. For instance , no woman has served as the Chief Justice of India till now

• The collegium system should be open to RTI Petitions
• Information disclosure- minutes of collegium discussions, criteria for making assessment and minimum eligibility should be disclosed.
• A Recommendatory Body should be constituted to scrutinize the credentials of candidates and recommend names to the collegium.
• Law Commission 230th report- Judges whose relatives are practicing in HCs- should not be appointed in the same HC .
• NJAC can be amended with a consultative approach to reflect judicial concerns.

The Collegium system, while safeguarding judicial independence, faces criticism for opacity, potential bias, and lack of diversity. Finding a balance between upholding judicial autonomy and ensuring transparency and accountability is crucial.

CJI DY Chandrachud has said that the "basis for selection and appointment of judges to higher judiciary must be defined and placed in public realm". Hence, it is advisable to consider establishing a permanent and independent body that institutionalizes the process, incorporating sufficient safeguards to protect judicial independence. The proposed body should prioritize independence, encompass diverse perspectives, and exhibit professional competence and integrity.