Collegium System

The Collegium system in India has referred to as judges - selecting - Judges. The collegium meaning is a group where every member has almost equal power and authority. The collegium system is the system that takes the responsibility of the appointment of judges in India. This system of appointing and transferring judges has evolved with the judgments of the Supreme Court from time to time Any  Act of Parliament or Constitutional provision are not responsible for the evolution of the Collegium system.  The Supreme Court Collegium has performed its duties under the supervision of the Chief Justice of India. The collegium also contains four senior judges of the Supreme Court. In the same pattern, the collegium of the High Court is headed by the Chief Justice of the high court and the other four most senior judges of that court. The recommended names for appointing by the High Court collegium send to the government only if it gets approved by the Chief Justice of India and the Supreme Court collegium. In case if the collegium reiterates its recommendation then the government is mandated to appoint a person as a Supreme Court judge. In this article, we will know about details what is collegium system is and how it is appointing judges in India.

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Constitution on Appointment of Judges

There are two articles in the Constitution of India that deal with the provisions of the appointment of Judges.

• Article 124(2): Article 124 (2) of the Indian Constitution states that the Judges of the Supreme Court would be appointed by the President of India after consultation with  Judges of the SC and HC.

• Article 217: This article states that the Judges of the High Courts of states and union territories shall be appointed by the President in consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

The Evolution of the Collegium System

The collegium system has been evolved by the Indian judiciary to retain their powers of appointment of Judges. The Judiciary wanted the power to select judges by itself.

• First Judges Cases:

This case happened in 1981. It was announced that the primacy of the Chief Justice of India recommendation on judicial appointments and transfers can be refused on a logical reason basis. The executive gains power over the Judiciary for judicial appointments. 

• The case of Second Judges:

This case happened in 1993. This is an important case when the collegium system came into power. The Supreme court introduced a collegium system. After the collegium system, it was declared that the individual opinion of the Chief Justice of India for the appointment would not be considered alone but a combined opinion would be considered with consulting two more senior-most judges of the Supreme Court. 

• The Third Judges Case:

The third judge case happened in 1998. In this case, the Supreme Court expanded the collegium system to a five-member body rather than three on the suggestion of the Indian President. It included the Chief Justice of India along with the four most senior judges. The collegium of the High Court collegium works under the guidance of the Chief Justice and along with four other senior-most judges of the court. 

The working of the Collegium System

The working of the collegium system in India is given below.

• It is the primary duty of the collegium to send recommendations of lawyers or judges to the Central Government. In the same way, the Union Government also sends some of the recommended names to the Collegium.

• After that, the Central Government investigates the recommended names and resends them to the Collegium for reconsideration.

• If the college is satisfied with the recommended persons then it considers the names, suggestions that had been made by the Central Government. After consideration, the collegium resends the file of recommendation to the central government for final approval. 

• In such a case, the government has to give its approval to the recommended names.

• There is a drawback of this system that the time limit is not fixed for the government to send its reply to the collegium.

Process for the appointment of Chief Justice of India (CJI):

The appointment of the Chief Justice of India is done by the President of India. The other judges of the Supreme Court are also appointed by the Presidents. It has been a practice in the Indian Judiciary system that the existing Chief Justice of India would recommend his successor.

It is a strict rule that the Chief Justice of India can recommend his successor on the basis of seniority. This rule came into existence after the controversy of 1970. There are some qualifications for becoming a Supreme Court judge such as a person should be an Indian citizen, he or she must have worked as a Judge of High Court for at least 5 years or worked as an advocate in a High Court for at least 10 years. A supreme court judge can hold office till the age of 65 years. A Supreme Court judge can be removed by the president only on the grounds of incapability or misbehaving.

Process of appointment of the Chief Justice of High Court

The appointment of the Chief Justice of the High Court is done by the President of India in consultation with the Governor of respective states and union territories. The collegium decides on the Appointment of the judges of the High Court and the proposal of appointment is sent to the Chief Minister then CM will advise the Governor. At last, the proposal for appointment would be sent to the Law Minister in the Central Government. 

The criticisms against the Collegium System

• The collegium is criticised for considering it unconstitutional and autocratic. The critics gave the fact that Collegium is not mentioned in the Constitution. 

• The selection process of the judges through collegium is undemocratic because judges are not elected by the people and are not accountable to the people or to anyone else.

• The functioning of the collegium system is non-transparent. There is no official selection through written manuals, records etc.

• The system promotes nepotism. Relatives of previous judges or senior lawyers tend to be popular choices for judicial roles. Thus it degrades the quality of the judiciary by excluding talented ones.

• It is considered inefficient because of the inability to prevent the increasing cases of vacancies of judges and cases in courts.

• Sometimes it is found that it ignores the guidelines of the Supreme Court. 

• Seniority amongst Judges in their High Courts and on an Indian basis is significant and should be given due consideration while making appointments from amongst High Court Judges to the Supreme Court.

• The order of seniority is always considered while appointing judges that also demotivate the talented one.

• After the fourth judges’ case, no reforms were made. After not approving the National Judicial Appointments Commission, the court did not amend the NJAC Act. Even the court added safeguards to it by making it constitutionally valid. 

National Judicial Appointments Commission (NJAC)

A new system of appointment of Judges called National Judicial Appointments Commission (NJAC) replaced the collegium system as there was a lack of transparency and delay in the appointments of judges. National Judicial Appointments Commission is an official group of the Chief Justice of India who is the chairperson, two senior-most Supreme Court judges, the Union Minister of Law and Justice, and two eminent persons nominated by a committee and Chief Justice of India, Prime minister of India, and the Leader of the Opposition party. The government of India decided to replace the collegium system through the 99th constitutional amendment with the National Judicial Appointments Commission. A person can not be recommended by NJAC if any two of the members reject such recommendation. The National Judicial Appointment Commission makes the appointment process of judges and lawyers more broad-based.