The Court and the problem with its collegium

Syllabus: General Studies Paper 3

The incumbent Chief Justice of India (CJI), Justice U.U. Lalit, had set in motion the procedure contemplated for the collegium of the Supreme Court which is enshrined in the Memorandum of Procedure of 1999.

• He also forwarded the name of Justice D Chandrachud as his successor. This has again put in focus the institution of the ‘collegium’ system that rules the appointments in higher judiciary.

The Collegium System 

• It was introduced in response to the executive interference in judicial appointments. However, this system has failed to protect judicial appointments from executive interference. It is due to the reasons like Post-retirement appointments of judges.
• At present, the collegium comprises of CJI (Chief Justice of India) and 4 senior-most judges of the Supreme Court. Despite various criticisms and attempts to reform the appointments and transfers process, the collegium system still persists and remains stronger.

Evolution of Collegium System

• Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President. He/she should consult such a number of the Judges of the Supreme Court and of the High Courts in the States as he/she may deem necessary for the purpose.
• 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 the Governor of the State. Further, the Chief Justice of the High Court should also be consulted except in case of his/her own appointment.
• In First Judges Case (1981) – The court said consultation under Article 124 doesn’t mean concurrence (unanimity). Based on this judgement, the President is not bound by CJI’s advice.
• In Second Judges Case (1993) – The court overruled its previous decision and said CJI’s advice is binding. Further CJI is required to formulate its advice based on a collegium of judges consisting of CJI and two senior-most SC judges.
• In Third Judges Case (1998) – The court expanded the collegium to a five-member body to include the CJI and the four senior-most judges of the court after the CJI.
• In the Fourth Judges Case (2015)– The SC upheld the primacy of the collegium. Further, the court strikes down the NJAC (National Judicial Appointments Commission) Act as unconstitutional. The Court held that the Act gave the government significant powers to appoint Judges. The Court held the Act encroached upon the judiciary’s independence and undermined the basic structure.

• The NJAC comprised of 3 judges of SC, a central law minister, and 2 civil society experts.
• A person would not be recommended by NJAC if any 2 of its members did not accept such recommendation, making the appointment process more broad-based.  

Criticisms of the Collegium System

• It gives enormous power to judges that can be easily misused. The collegium system has made India, the only country where judges appoint judges.
• The selection of judges by collegium is undemocratic. Since judges are not accountable to the people or representative of peoples i.e. executive or legislative.
• There is no official procedure for selection or any written manual for functioning. This creates an ambiguity in the collegium’s functioning.
• Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles. Thus, it encourages mediocrity in the judiciary by excluding talented ones and breeds nepotism.
• The delays over the appointment are still persistent. The Supreme Court last appointed a judge in September 2019, and it currently has four vacancies, which is expected to be increased further this year. 
• The procedure lacks uniformity- Sometimes a judge of HC is elevated as chief justice of the same HC while in other cases he/she is made chief justice of some other high court.
• Proactive decisions on improving transparency were rolled back to secrecy. This includes the practice of disclosing the reasons while announcing the collegium’s decision. 

National Judicial Appointments Commission

• The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.
• It will consist of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination.
• The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014.
• The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment.

Way Forward

• In recent times, the Government seems to have given up on pursuing the commission for judicial appointments. It is time to revisit this question and secure a better, broad-based and transparent method of appointing senior judges to the High Courts and the Supreme Court.
• While doing so, we may also ask why there have been no appointments from the category of distinguished jurists which Article 124 of the Constitution contemplates. Appointments to the top court seem to be the preserve of judges from the High Courts with a handful of appointments from the Bar.
• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, so it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• The mechanism for judicial appointments and transfer should ensure judicial independence, reflect diversity, demonstrate professional competence and integrity.
• Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.
• Apart from the above suggestions, government may also examine the feasibility of reviving the idea of a National Judicial Oversight Committee (NJOC) that gives executive greater role in ensuring transparency and efficiency in higher judiciary of India.