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The Collegium System

The Collegium System is the system comprised of the Chief Justice of India (CJI) and four other senior-most Supreme Court judges that decides appointments to the higher judiciary and transfers of judges. It was evolved through Supreme Court Judgments rather than an Act of Parliament or a provision of the Constitution.

According to article 124(2) of Indian Constitution, "Establishment and constitution of Supreme Court: 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 Courts 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."

First judges case, 1982 (S. P. Gupta v. Union of India)

The Supreme Court addressed two major issues during the course of the proceedings. First one, whether the word "consultation" in constitutional article 124 means "concurrence". The Supreme Court ruled that consultation does not imply concurrence. The President was not required to make a decision based on the advice of the Supreme Court. Another significant point was that a High Court Judge can be transferred to any other high court in a state, even against his/her will.

Second judges case,1993 (Supreme Court Advocates-on Record Association vs Union of India)

This petition was filed in 1993 by the Supreme Court Advocates on Record Association. The Supreme Court reversed its previous decision in this case and redefined consultation as concurrence. As a result, the consultations of the Chief Justice of India bind the President of India. The Collegium System was born as a result of this Judgment.

Third Judges Case, 1998 (In re Special Reference 1 of 1998)

In 1998, the President made a reference to the Supreme Court for clarification on the definition of the word "consultation" in Articles 124, 217, and 222 of the Constitution. The Apex Court held that "the Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four senior most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior most puisne Judges of the Supreme Court."

Composition of Collegium according to the Third Judges case:

Criticisms of Collegium System:

• Lack of transparency: Critics argue that the Collegium system is not transparent and makes it difficult for the public to understand the reasons behind the appointment and transfer of judges.

• Lack of accountability: The system has also been criticized for not being accountable to the public, and for making it difficult to hold the judges who make appointments and transfers accountable for their decisions.

• Lack of diversity: Some people have raised concerns that the Collegium system does not do enough to promote diversity among the judges of the higher judiciary. This includes not ensuring that a sufficient number of women and members of underrepresented groups are appointed to the bench.

• Lack of public input: Another weakness of the Collegium system is that it does not involve the participation of the public or other stakeholders in the appointment and transfer process. Instead, the process is largely controlled by the judges themselves.

• Potential for corruption: There are concerns that the Collegium system is vulnerable to corruption and nepotism. Critics argue that appointments and transfers may be influenced by personal connections or other improper considerations.

National Judicial Appointments Commission (NJAC)

The National Judicial Appointments Commission (NJAC) was established in 2014 as a replacement for the Collegium system in response to criticisms of a lack of transparency and accountability in the appointment of judges.The Constitution (99th Amendment) Act introduced three important Articles: 124 A, B, and C, and amended clause 2 of Article 124. Article 124A created the National Judicial Appointments Commission (NJAC). Article 124B vested in this NJAC the power to make appointments to both the Supreme Court and the various high courts, and Article 124C gave Parliament the power to make laws regulating the NJAC’s functioning. The president approved the amendment, along with the NJAC Act, in December 2014. The amendment specified that appointments to the higher judiciary would be made by a commission comprised of:

• The Chief Justice of India as the Chairperson, ex officio.

• Two other senior Judges of the Supreme Court next to the Chief Justice of India as Members, ex officio.

• The Union Minister in charge of Law and Justice as Member, ex officio.

• Two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then the Leader of the single largest Opposition Party in the House of the People, as members. One of the eminent persons shall be nominated from amongst those belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women.

Veto power: If two members of the commission oppose a particular name, NJAC will not recommend that person.

However, on 16 October 2015, the Supreme Court's Constitution Bench, by a 4:1 majority, declared the NJAC unconstitutional after hearing petitions filed by several individuals and organisations, the first and lead petitioner being the Supreme Court Advocates on Record Association (SCAoRA). Justices J. S. Khehar, Madan Lokur, Kurian Joseph, and Adarsh Kumar Goel declared the 99th Amendment and the NJAC Act unconstitutional, while Justice Jasti Chelameswar upheld them.

Criticisms of NJAC

Critics argued that, the presence of political representatives in the National Judicial Appointments Commission (NJAC) could compromise the autonomy of the judiciary and result in the selection of judges based on political factors rather than their qualifications. The Supreme Court of India concurred with this viewpoint and declared that the NJAC Act contravened the principles of judicial independence and the fundamental framework of the Indian Constitution. Consequently, the previous Collegium system, which was deemed more impartial, was restored.

Conclusion:

Undoubtedly, the current collegium system has some serious issues. Even the Supreme Court Bar Association has criticized it for fostering a "give-and-take" culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.” However, the question is whether the National Judicial Appointment Commission (NJAC) offers a solution to this problem. In the words of eminent advocate and former Attorney General of India, Mr. Soli Sorabjee, "Please remember no system can be perfect. You cannot ensure independence, you cannot legislate independence. A judge must be independent even of himself, of his biases, prejudices, predilections, preconceptions. But the thing is, on the whole, it is a human system, it is not a perfect system. I think I would rather go with the collegium system, make it broad based, it to be taken into consideration in appointment of judges rather than scrap it altogether. I would rather trust the judges than the executive."

References:

https://www.thehindu.com/specials/in-depth/njac-vs-collegium-the-debate-decoded/article61470776.ece

https://www.wionews.com/njac-or-collegium-an-unsettled-debate-between-two-branches-of-government-552071

https://byjus.com/free-ias-prep/collegium-system/

https://www.mondaq.com/advicecentre/content/3728/The-National-Judicial-Appointment-Commission-A-Critique