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| Collegium System In India |
The Higher judiciary in India has evolved significantly over the years. It is not so as it was before at the time of independence. Be it in case of appointment of judges, judicial activism and hearings on PIL, the judiciary as the 3rd pillar of democracy has sometimes expanded and sometimes limited its outreach.
The Supreme Court came into existence after two days of commencement of the constitution succeeding the federal court of India.
Article 124(1) of the Indian constitution provides for the establishment of an SC in the country.
Article 124(2) states that "every judge of the supreme court shall be appointed by the president of India in consultation with judges of supreme court and judges of High courts as the President may feel necessary."
But in appointment of judges other than the Chief justice of India, CJI must be consulted.
In regards to appointments of HCs judges, the constitution under article 224 says every judge of the HC shall be appointed by the president in consultation with the CJI, the governor of the concerned state and the Chief Justice of the concerned HC in case of appointment of judges other than the CJ.
Initially, President was appointing judges on the recommendations of the Government in consultation with CJI in case of appointment of judges other than CJI.
The senior most judge of the SC was being appointed as the CJI. This was the norm till 1973. But in 1973, Justice A N Ray was appointed as the CJI superseding his three senior judges in SC. Soon after the appointment those three judges resigned in protest of the action by the then government.
Then three judgements of SC defined the procedure, functioning and role of today's collegium system of judicial appointments in India.
1. S. P. Gupta V/S Union of India, 1981
This case is also known as the 1st judges case. In this case the SC found that the term "Consultation" doesn't mean "concurrence" i.e. the president has the sole authority in appointment of judges. The president can appoint a judge even if the CJI is against that appointment.The CJI will only be consulted, his recommendation is not binding on the president.
A judge of the HC can be transferred against his/her will.
2. Supreme court advocates on record association v/s Union of India, 1993
It was the 2nd judges case.In this case the nine judge bench of the Supreme Court declared CJI as the primacy in the appointments of judges. This judgement came up with a new concept Collegium system for judicial appointments.
This judgement rendered the executive to have any say in the appointments and transfers of judges in the Higher judiciary.
3. In special reference, 1998
The then president made a presidential reference to the SC and asked its views on the collegium system of judicial appointment.
This judgement bordered the role of collegium. In this case the SC said that if a name is recommended by the collegium to the government, the government may accept or return the name for reconsideration by the collegium. But if the collegium again sends the same name, then it is binding on the government to accept that name.
What is Collegium system?
This is a unique practice which is found only in India. Collegium is a group of judges which consists of the CJI and some senior most judges of the SC.
For induction of judges to the SC, the collegium consists of CJI and four senior most judges of the supreme court.
If two judges of the collegium are not in favour of a name, the recommendation shall not be made in that case.
The CJI enjoys absolute veto in the appointment of judges i.e. if the CJI is not in favour of a name, the recommendation can't be made in that case.
In case of induction of judges to HCs, the collegium consists of the CJI and two senior most judges of the apex court.
In case of transfer of judges of HCs, the CJI should consult four senior-most judges of the SC and two CJs of the concerned HCs.
Criticism associated with the Collegium:
1. It is not transparent and totally opaque. The public and even the government don't get to know what is happening during the collegium meetings.
2. The provision for a collegium is nowhere found in the constitution. The judiciary has come up with this concept of its own.
3. The job of appointment of judges in the Higher judiciary had been given to the executive by the original constitution. So by coming up with a new concept of collegium, the judiciary has amended the constitution while parliament is the only institution which has the mandate to amend the constitution.
4. There is not a fixed procedure in the functioning of the collegium. So the decisions by the collegium are highly arbitrary.
5. It is not known to the public on which basis the collegium is recommending names to the government. Does it consider the merit or seniority or any other criteria for appointments?
6. The collegium has given rise to nepotism and personal patronage in the higher judiciary. It has been seen that the apex court is dominated by sons or daughters and relatives of former judges.
7. While in a democracy there should be always checks and balances to stop the misuse of power. There is no such sort of accountability associated with the conduct of collegium.
8. India is the only country where judges appoint judges and perhaps it is nowhere found in the world.
Counter arguments given by SC in favour of Collegium:
1. The constitution advocates for an independent judiciary and separation of power between the executive, legislative and judiciary. So the collegium is a perfect match for it.
2. If the executive appoints judges, there shall be unchecked political interference and independence of judiciary will be hampered.
3. Collegium will speed up filling of vacancies in the higher judiciary.
But unfortunately the collegium has failed miserably to fill up vacancies in the higher judiciary.
In 2014, the parliament amended the constitution and National Judicial appointments commission (NJAC) bill, 2014 got passed by the parliament.
Then many petitions were filed in the SC against the NJAC.
The SC's five judge constitution bench on a 4:1 majority struck down the NJAC as unconstitutional and upheld the collegium.
What were the features of NJAC?
1. The NJAC shall comprise of the CJI, two senior most judges of the SC, the Union law minister and two eminent persons selected by a committee comprising of the Prime minister, the CJI and the leader of opposition or the leader of the single largest opposition party in the parliament.
2. The CJI will be the chairperson of NJAC.
3. If two members of the NJAC don't agree on a name then recommendation shall not be made in that case.
4. The NJAC Act says that the senior-most judge of the SC shall be appointed as the CJI provided he/she is fit to hold the office.
5. The NJAC Act says that the name shall be recommended on the basis of ability, merit or other criteria as specified by NJAC.
6. The NJAC shall seek the views of the concerned governor and CM in appointment of judges to a concerned High Court. But their views are not binding on the NJAC.
7. The president can return the name of a judge for reconsideration. But if the NJAC recommends the same name again, the president has no option but to accept it.
So we can clearly see that NJAC was more or less similar to the current collegium system. The NJAC was clearly tilted towards the judiciary as it was having three members and two members were having the veto power to nullify a name considered for appointment.
NJAC was more efficient, transparent and structured than the collegium which doesn't have any mandate of the constitution.
What is the way forward?
SC should not have rejected NJAC all together which had been passed by the parliament and ratified by half of the state legislatures. It was against the values of representative democracy.
NJAC in no way was violating the independence of judiciary. There are enough provisions in constitution like security of tenure of judges, salary of judges from the consolidated fund of India and a very complex impeachment process to remove a judge form higher judiciary ensure independence of judiciary.
SC could have made some changes to the NJAC. It should be noted that no institution is perfect and an institution should adopt various reforms from time to time to keep itself efficient and effective.
The SC should come up with reforms to the collegium and should address various concerns raised by various sections of the society.
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