Political Science PSDA

By Niharika Deval, Cheshta, Drishty Panchal, Hansika Sharma, Bhoomi Jain, Rajat Tehlan

‘The Collegium System’

INTRODUCTION
The Collegium system in India also called “Judges- selecting- Judges,” is the system by which
the judges are appointed and transferred only by the judges. The system has evolved by
means of the judgments of the Supreme Court, and not by an Act of Parliament or by a
Constitutional provision. The Supreme Court Collegium is headed by the Chief Justice of
India and comprises four other senior-most judges of the SC. A High Court collegium is
headed by its Chief Justice and four other senior-most judges of that court. Names
recommended for appointment by a High Court collegium reach the government only after
approval by the CJI and the Supreme Court collegium. The government can return the
recommendation for reconsideration to the Collegium. If the collegium reiterates its
recommendation, then the government is decreed to appoint the respective person. The
appointment process takes a long time since there is not a fixed time limit for the process. If
the Collegium resends the same name again then the government has no choice but to give
its assent to the names. The appointment of judges is an important aspect of judicial
independence which requires that in administering justice, judges should be free from all
sorts of direct or indirect influence of political or non-political bodies. The independence for
judiciary is particularly important so that the judges can be impartial and perform their
duties effectively and without any sort of fear and favour.
The freedom of judges has a close relationship with judicial appointment as the
appointment of Judge by the head of the state is followed in most of the countries of the
world. Appointment by the head of the state with the consultation of the Lord Chancellor
was essentially the British method which was adopted in the Indian Constitution provided
under Article 124 of Indian Constitution states that:
Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with such of the Judges of the Supreme Court and of the
High Court in the States as the President may deem necessary for the purpose and shall hold
office until he attains the age of sixty five years: Provided that in the case of appointment of
a Judge other than the chief Justice, the Chief Justice of India shall always be consulted. The
mechanism for judicial appointment plays a significant role in selecting the persons having
the professional skills and qualities that are required for judges in an independent judiciary.

ORIGIN OF THE COLLEGIUM SYSTEM

In the Constitution of India, the word Collegium did not exist, it has come in force as per
Judicial Pronouncement. The origin of the concept for the establishment of the system may
be traced by the recommendations of the Bar Council of India made on 17 October 1981,
during a national seminar of the lawyers at Ahmedabad. In the seminar, a recommendation
was given that there should be a collegium system for the appointment of the Supreme
Court Judges by the following authorities:
1. The Chief Justice of India
2. Five senior Judges of the Supreme Court
3. Two representatives who would be representing the Bar Council of India and the Supreme
Court Bar Association.
The recommendation of such a Collegium system should be binding on the President,
though he can say for reconsideration on certain grounds.
Later, on 30 December 1981, Bhagwati Judge of the Supreme Court focused on the
necessity of establishing collegium system in India in the case S.P. Gupta v Union of India.
However, Bhagwati J in the First Judges' Case expressed his dissatisfaction with the existing
'mode of appointment of judges in India in which the authority to select judges has
exclusively been vested 'in a single individual' (the President) whose choice 'may be
incorrect or inadequate' and 'may also sometimes be imperceptibly influenced by
extraneous or irrelevant considerations.'
Accordingly, he suggested that:
There must be a Collegium to make recommendation to the President regarding
appointment of a Supreme Court or High Court Judge. The recommending authority should
be more broad-based and there should be consultation with wider interests.
If the Collegium is composed of persons who are expected to have knowledge of the
persons who may be fit for appointment on the Bench and of qualities required for
appointment and this last requirement is absolutely essential- it would go a long way
towards securing the right kind of Judges, who would be truly independent

Timeline of establishment through Judicial Pronouncements

The Collegium of judges, as proposed by Bhagwati J, could only be established in India
through the passing of an amendment to the provisions of Articles 124(2) and 217(1) of the
Constitution. But in 1993, a majority of Nine-Judge Constitutional Bench of the Supreme
Court in the Second Judges' Case and in 1998, the unanimous opinion of the nine- Judge
Constitutional Bench of the Supreme Court in the Third Judges' Case did accomplish the task
of setting up of the collegium of judges.
The composition of the collegiums as contemplated by Bhagwati J in the First Judges' Case
that it 'should be more broad- based and there should be consultation with wider interests'
was completely ignored; the membership of the Collegium was kept narrow-based (i.e.,
confined only to the judges of the superior courts).
1. First judge case 1981
 It is one of the first cases of the ‘Three judges Cases’ now referred to as the ‘Four Judges
case’ after 2015, which played a vital role in introducing a collegium system for the
appointment of judges in the Supreme Court and High Courts. The Court, with the help of
these cases, set a precedent for the principle of independent jurisdiction, which means that
no other organ of the government except the judiciary itself will interfere in the election of
judges. S.P. Gupta v. Union of India (1981) is the first case, which is also known as the
‘Judges’ Transfer Case’, established a precedent for the collegium system.
It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial
appointments and transfers can be refused for “cogent reasons.” The ruling gave the
Executive primacy over the Judiciary in judicial appointments for the next 12 years. At that
time, Indira Gandhi had come back to power and it was executive dominated government
and 8 years had passed over Kesavananda Bharati case, it was a restrained judiciary.
2. Second Judge Case 1993
In the Supreme Court Advocates on Record Association (SCARA) VS Union of India,1993, a
nine-judge constitution Bench overruled the decision in SP Gupta, and devised a specific
procedure called 'Collegium System' for the appointment and transfer of judges in the
higher judiciary.
The case Accorded primacy to the CJI in matters of appointment and transfers, while also
ruling that the term "consultation" would not diminish as the primary role of the CJI in
Judicial appointments.
3. Third judge case
In the year 1998, the presidential reference to the Supreme court was issued questioning
the meaning of the word consultation in articles 124, 217, and 222 of the Constitution.
The chief justice will not be the only one as a part of the consultation process. Consultation
would include a collegium of four senior-most judges of the Supreme court. Even if two of
the judges are against the opinion, the CJI will not recommend it to the government
The SC in the third judges’ case, 1998 clarified that the collegium would consist of:
• CJI and four senior-most judges in case of appointments to the Supreme Court.
• CJI and two senior-most judges in case of appointments to the High Court.
National Judicial Appointments Commission (NJAC)
• The government through the 99th constitutional amendment wanted to replace the
collegium with the NJAC.
• The NJAC comprised of three judges of SC, a central law minister, and two civil society
experts.
• A person would not be recommended by NJAC if any 2 of its members did not accept such
a recommendation = making the appointment process more broad-based.
• However, it was struck down by the Supreme Court in 2015 in the Fourth Judges Case.
4. Fourth Judges Case, 2015
• In the Fourth Judges Case, 2015, the SC upheld the primacy of the collegium by striking
down the NJAC law.
• The court’s rationale was that the NJAC law offered politicians equal power in judicial
appointments to constitutional courts which is against the provision of “separation of
power” under the Basic Structure of the constitution = Ultra Vires of the constitution.
• However, due to the widespread criticisms against the collegium, the judgement promised
to consider necessary measures to improve the collegium system. For this purpose, the SC
required the government to submit the Memorandum of Procedure (MoP).

Procedures for judicial appointments:

CHIEF JUSTICE OF INDIA -The chief justice of India and the other judges of the Supreme
Court are appointed by the President of India under Article 124(2) of the Indian
Constitution. It is enshrined in Article 124 that appointment by the President is to be done
“after consultation” with judges of the Supreme Court, as the President may “deem
necessary”. The outgoing CJI recommends his successor a practice, which is strictly based on
seniority. As per practice, a formal recommendation of the CJI designate is sought from the
incumbent CJI, roughly about a month ahead of the latter’s date of retirement. Seniority,
however, is not defined by age, but by the number of years a judge has been serving in the
top court of the country. The Central Government has no role to play in the appointment of
the CJI except for the Union Law Minister seeking the recommendation from the incumbent
CJI, before sending it to the Prime Minister. The line of succession for the post of the CJI can
be determined easily by evaluating who the second senior-most judge will be when the post
is scheduled to fall vacant. The protocol of seniority had seen exceptions on two occasions
during the tenure of Indira Gandhi as Prime Minister.
SUPREME COURT JUDGE- According to the Constitution of India, the following are the rules
for appointment of the Supreme court Judge.
• Every Judge of the Supreme Court shall be appointed by the President by warrant under
his/her hand and seal after consultation with such of the Judges of the Supreme Court and
of the High Court in the States as President may deem necessary for the purpose and shall
hold office until he attains the age of 65 years.
• Supreme Court held that the consultation with Chief Justice is not binding on the
President. But the Court held that consultation should be effective.
• In Supreme Court Advocates-on-Record Association vs Union of India 1993, the Court
states that the view of the CJI is binding on the President, the Court also held that while
advising the President CJI is expected to consult two of the senior-most Judges.
• CJI is the sole authority to initiate the process of appointment of Judges of the Supreme
Court. In case of conflict of opinion between CJI and President, the view expressed by CJI
will have a primary.
• In July 1998, the President sought the court’s opinion on core issues relating to the
appointment of Apex Court Judges and transfer of High Court Judges.
• The 11th Presidential Reference sought clarification on certain doubts over the
consultation process to be adopted by the Chief Justice of India as stipulated in the 1993
case relating to judges’ appointment and transfer opinion.
• The crux is as follows:
 In judicial appointments, it is obligatory for the President to take into account the
opinion of the CJI.
 The opinion of the CJI is binding on the Government. The opinion of the CJI must be
formed after due consultation with a collegium of at least four senior-most judges of
the Supreme Court.
 Even if two judges give an adverse opinion, then he should not send the
recommendation to the Government.
 CHIEF JUSTICE OF HIGH COURT - The judges of a High Court are specified by the
President. The Chief Justice of a High Court is appointed by the President in the wake
of consultation with the chief justice of India and the governor of the state
concerned. For the appointment of other judges, the chief justice of the concerned
High court is also discussed. In the case of a common High court for two or more
states, the governors of all the states concerned are consulted by the president.
Department of Justice, Ministry of Law and Justice is accountable for the
administrative functions in relation to the appointment of various judges. Also, the
chief justice of the Supreme Court is appointed by the President under Article 124 of
the Indian Constitution.

ADVANTAGES
1. The collegium system increases secrecy. Ruma Pal, a former Judge of the Supreme Court
of India, stated that this system is one of the best kept secrets in the country. It kept secret
within the four walls of the body for proper and effective functioning of the institution that
makes the system opaquer.
2. The collegium system makes Judiciary independent from the politics. It separates the
judiciary from the influence of executive and legislative. With the Government’s influence
judiciary can work without any fear and any sort of favour. This ensures the regulation of
the doctrine of separation of power.
3. There are considerable number of cases in which the judges of the Supreme Court were
transferred because of the political influences. So, the power given to executive organ for
transferring the judges would lead to decrease the independence of judiciary as well as it
will stop the judiciary organ to work effectively. For fair functioning collegium system would
be best as it ensures the independence and allows the judge to perform their duty without
any fear or without any interference and influence.
4. The executive organ is not specialist or does not have the knowledge regarding the
requirements of the Judge as comparative to the CJI. Collegium system ensures that the
deserving one is sitting in the position of the Judge in Supreme Court.

DISADVANTAGES
1. This system does not provide any guidelines in selecting the candidates for the judge
position of the Supreme Court because of which it leads to wide scope for the nepotism and
favouritism. Because of which the deserving candidates are unable to appointed as the
Judge.
2. The collegium system does not have any criteria for assessing the candidate as well as
they do not investigate any background of the candidates and they are not accountable to
any administrative body that may lead to wrong choice of the candidate while overlooking
the right candidate.
3. Already there are substantial cases pending in the Court, they are having limited time the
power given to them for the appointment would lead to burden to Judiciary.
4. The principle of check and balance is violated in this system. In India, three organs work
partially independently but they keep check and balance and control on the excessive
powers of any organ. As Judiciary is dependent on the executive for the appointment of the
Judges with the consultation of CJI and the senior most Judges of SC; but this system gives
the immense power to Judiciary to appoint Judges, so the check on the excessive powers
would not be ensured and misuse of powers can be done.
5. This system leads to non-transparency of the judicial system, which is very harmful for the
regulation of law and order in the country

CONCLUSION
The collegium system although ensures independence of Judiciary but does not provide a
clear mechanism for appointment of Higher Judiciary, which is extremely crucial as they are
the WatchGuard of the Constitution and thus the said system is assailed for lack of
transparency. On one hand, if independence of the Judiciary ensures thus it is utmost
important that the current system addresses such loopholes and a stronger system is
developed to ensure that people’s faith in the judicial system does not shake.