Law and You > Constitutional Law > Collegium System of Appointment and Transfer of Judges

In India, the appointment of Supreme Court and High Court judges was previously determined by the President, in consultation with the Chief Justice of India and other judges. The procedural guidelines for judicial appointments were defined in Article 124 and Article 217 of the Indian Constitution. Since 1993, the responsibility for appointments and transfers of judges in the higher judiciary has been assigned to the Collegium system developed by the Supreme Court. The nominal appointing authority is the President of India.

Collegium System:

The Collegium system in India refers to the mechanism through which appointments and transfers of judges to the higher judiciary, including the Supreme Court and High Courts, are made. The Collegium system has evolved through judicial interpretations of the Constitution and is not explicitly provided for in the text of the Constitution.

Evolution of Collegium System:

• According to the Article 124(2) of the Constitution of India, every judge of the Supreme court is appointed by the President of India in consultation with such of the judges of the Supreme court and High courts as the President may deem necessary.
• In S P Gupta v. Union of India First Judges Case, a seven judge Constitution Bench held that the President of India is the final authority to appoint and he need not follow the advice of the judges whom he consults. It meant ‘consultation is not concurrence’.
• In (Supreme Court Advocates-on-Record Association v. Union of India  Second Judges Case, a nine-judge Constitution Bench overruled the decision given in SP Gupta Case and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
• It accorded Primacy to the CJI in matters of appointment and transfers while also ruling that the term ‘consultation’ would not diminish the primary role of the CJI in judicial appointments.
• The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. (Article 50 of Constitution of India: Separation of powers between Judiciary and Executive)
• In the Third Judges Case (1998), the 1993 decision was reaffirmed with minor modifications in 1998, on a reference made by the President under Article 143 of the Constitution.
• It was held that the recommendation of appointment etc., should be made by the chief justice of India and his four senior most colleagues instead of earlier two and is referred to as the Collegium.
• Both 1993 decision and 1998 opinion lay down that the senior most judge of the SC should be made as CJI.

Working of Collegium System:

Here’s how the Collegium system works:

• Composition: In the Collegium system, the Chief Justice of India and the four most senior colleagues recommend candidates for appointment as Supreme Court and High Court judges to the President through the Union Minister of Law and then via the Prime Minister. Currently, the Collegium consists of six judges instead of five. This change occurred because none of the four most senior judges are eligible to become the next Chief Justice of India (CJI), and the next CJI requires to be a part of the Collegium. Therefore, Justice Sanjiv Khanna currently serves as the sixth member of the Collegium and will succeed Chief Justice DY Chandrachud as the next CJI.
• Recommendations: Under the Collegium system, the appointment and transfer of judges are primarily initiated by recommendations made by the Collegium. These recommendations are usually based on factors such as seniority, merit, integrity, and suitability of the candidates for elevation or transfer.
• Consultation with the Government: While the recommendations of the Collegium are binding on the President of India, who formally appoints judges, there is a process of consultation with the government. The government may express its views on the recommendations made by the Collegium, but it does not have the power to veto or reject them outright.
• Appointment Process: Once the Collegium recommends a candidate for appointment or transfer, the President of India issues a formal warrant of appointment or transfer. The process is largely ceremonial, as the President is bound by the recommendations of the Collegium.
• Role of Parliament: While the Collegium system operates independently of the executive and legislative branches of government, there have been debates and discussions in Parliament regarding the efficacy and transparency of the system. Efforts have been made to introduce legislation to reform the process of judicial appointments and establish a National Judicial Appointments Commission (NJAC), but such efforts have faced legal challenges.

Criticism to Collegium System:

While the Collegium system in India was established to ensure judicial independence, it has faced criticism and scrutiny over the years. Here are several arguments against the Collegium system:

• Lack of Transparency: One of the primary criticisms of the Collegium system is its lack of transparency. The decision-making process within the Collegium, including the criteria used for selecting and elevating judges, is not made public. This opacity undermines accountability and public trust in the judiciary. Collegium system leads to non-transparency of the judicial system, which is very harmful for the regulation of law and order in the country.
• Nepotism and Favouritism: The Collegium 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 nepotism and favouritism. It may lead to the wrong choice of the candidate while overlooking the right candidate.
• Misuse of power: In India, three organs work partially independently but they keep check and balance and control on the excessive powers of any organ. The concentration of appointment powers within a small group of senior judges under the Collegium system has been criticized for centralizing power within the judiciary. Critics argue that this concentration of power may lead to an insular and self-perpetuating judicial elite, limiting opportunities for fresh perspectives and diversity in the judiciary.
• Limited Diversity: There is no provision for reservation in judicial appointments from marginalised communities to ensure social diversity. Critics argue that the Collegium system has not adequately addressed the issue of diversity in judicial appointments. There is a lack of representation of women, minorities, and marginalized communities in the higher judiciary, raising questions about the inclusivity and representativeness of the judicial system. In the last three decades, the collegium system has failed to address the issue of social diversity in higher judiciary, as originally devised by the Supreme Court.
• Absence of Accountability: The Collegium system lacks robust mechanisms for accountability. Since the executive and legislative branches have limited involvement in the appointment process, there is limited oversight over the decisions made by the Collegium. This can lead to concerns about the potential for favouritism, nepotism, or other biases in judicial appointments.
• Bypassing Meritocracy: Some critics contend that the Collegium system may not always prioritize meritocracy in judicial appointments. Factors such as seniority and personal relationships within the judiciary may influence decisions, potentially overlooking highly qualified candidates who are not part of the judicial establishment.
• Inefficiency and Delays: The Collegium system has been criticized for its inefficiency and delays in judicial appointments. Vacancies in the higher judiciary often remain unfilled for extended periods, leading to backlogs in court cases and delays in the delivery of justice.
• Constitutional Concerns: Some critics argue that the Collegium system deviates from the constitutional framework for judicial appointments laid out in Articles 124 and 217 of the Indian Constitution. They contend that the system lacks adequate checks and balances and does not provide for meaningful involvement of the executive and legislative branches in the appointment process.

Thus, while the Collegium system was intended to safeguard judicial independence, it has faced significant criticism for its lack of transparency, accountability, diversity, and efficiency. Efforts to reform the system and introduce mechanisms for greater transparency, accountability, and inclusivity in judicial appointments continue to be debated in India.

Arguments in Favour of Collegium System:

Despite criticisms, proponents of the Collegium system in India argue that it serves several important purposes and is essential for safeguarding judicial independence. Here are some arguments in favour of the Collegium system:

• Judicial Independence: The State shall take steps to separate the judiciary from the executive in the public services of the State (Article 50 of the Constitution of India). It ensures the regulation of the doctrine of separation of power. The Collegium system is designed to insulate judicial appointments from political interference and executive influence, thereby preserving the independence of the judiciary. By placing the responsibility for judicial appointments in the hands of senior judges, the system seeks to protect judges from external pressures and ensure that they can adjudicate cases impartially and fearlessly.
• Expertise and Experience: Proponents argue that the Collegium system leverages the expertise and experience of senior judges who are best positioned to evaluate the suitability and competence of candidates for judicial appointments. The system allows judges to assess the professional qualifications, integrity, and judicial temperament of potential appointees based on their first-hand knowledge of the legal profession and the judiciary.
• Judicial Consensus: The Collegium system encourages consensus-building among senior judges, leading to informed and deliberative decision-making in judicial appointments. By involving multiple judges in the selection process, the system seeks to minimize the risk of individual biases or preferences influencing appointments and ensures that appointments reflect a collective judgment of the judiciary.
• Protecting Judicial Diversity: Advocates of the Collegium system argue that it helps preserve diversity within the judiciary by allowing judges to consider a wide range of factors, including regional representation, gender diversity, and professional background, in judicial appointments. This ensures that the judiciary reflects the diverse composition of Indian society and promotes inclusivity and representation on the bench.
• Maintaining Judicial Supremacy: The Collegium system reinforces the principle of judicial supremacy by vesting the judiciary with primary responsibility for judicial appointments. Proponents argue that judicial appointments are inherently judicial functions and should be insulated from executive control to prevent encroachment on the independence of the judiciary and maintain the separation of powers.
• Adaptability and Flexibility: The Collegium system offers flexibility and adaptability in responding to changing circumstances and judicial needs. Unlike statutory bodies or commissions, the Collegium can respond quickly to vacancies or emergent requirements within the judiciary, ensuring timely appointments and transfers to maintain the effective functioning of the courts.
• Preserving Constitutional Principles: Supporters of the Collegium system contend that it upholds constitutional principles of judicial independence and separation of powers enshrined in the Indian Constitution. By vesting the judiciary with significant autonomy in judicial appointments, the system reinforces the judiciary’s role as a guardian of the Constitution and protector of individual rights and liberties.

Thus, proponents of the Collegium system argue that it is essential for safeguarding judicial independence, maintaining judicial diversity, and upholding constitutional principles in India. While the system may have shortcomings, efforts to improve transparency, accountability, and inclusivity within the Collegium framework continue to be debated to address concerns and strengthen the independence and effectiveness of the judiciary.

The National Judicial Appointments Commission (NJAC):

The National Judicial Appointments Commission (NJAC) was a proposed constitutional amendment aimed at reforming the process of judicial appointments in India. The NJAC sought to replace the existing Collegium system with a commission comprising members from the judiciary, executive, and civil society. While the NJAC was intended to address some of the perceived shortcomings of the Collegium system, its constitutionality and effectiveness were subject to debate and legal scrutiny. The issue of judicial reform remains a complex and contentious issue in India, with ongoing discussions on how to strike the right balance between judicial independence and accountability.

Conclusion:

In conclusion, the Collegium system in the Indian judiciary has been a subject of debate, scrutiny, and reform efforts. While it was established to safeguard judicial independence and insulate judicial appointments from political interference, the system has faced criticisms for its lack of transparency, accountability, and inclusivity. However, proponents argue that the Collegium system plays a crucial role in preserving judicial independence, expertise, and diversity within the judiciary. By involving senior judges in the appointment process, the system aims to ensure informed decision-making, consensus-building, and protection of constitutional principles.

Despite its shortcomings, the Collegium system remains the prevailing mechanism for judicial appointments in India, reflecting the judiciary’s assertion of its autonomy and authority in matters relating to judicial appointments. Efforts to reform the system and introduce measures for greater transparency, accountability, and inclusivity continue to be debated to address concerns and strengthen public trust in the judiciary. Ultimately, the effectiveness of the Collegium system depends on striking the right balance between judicial independence and accountability, while upholding the principles of the rule of law, separation of powers, and constitutionalism in India.

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