Collegium System in India (Prelims & Mains- Polity & Governance)

Why in news?

Chief Justice of India D.Y. Chandrachud headed a Supreme Court Collegium which had aimed at filling judicial vacancies but was not always successful with its recommendations.

Judicial Appointments In india

• Articles 124(2) and 217(1) of the Indian Constitution deal with the appointment of judges to the Supreme Court and High Courts of India, respectively.  At present, judges of the Supreme Court and the High Courts are appointed by the collegium system, i.e., a committee comprising the Chief Justice of India and the four senior most judges of the Supreme Court, and the Government has a role only after names have been decided by the collegium.
• In order to make the collegium system of appointments of Judges of the Supreme Court and High Courts more broad-based, transparent, accountable and bringing objectivity in the system, the National Commission to Review the Working of the Indian Constitution (2000) was set up under the chairmanship of Justice M.N. Venkatachaliah. The Commission suggested setting up a Judicial Appointment Commission in the country.  
• In August 2014, Parliament passed the Constitution (Ninety-ninth Amendment) Act, 2014, along with the National Judicial Appointments Commission (NJAC) Act, 2014, providing for the creation of an independent commission to appoint judges to the Supreme Court and high courts to replace the collegium system.  
• A five-judge bench of the Apex Court, by a majority of 4:1, vide its judgement dated 16 October, 2015 struck down both the Acts—the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointment Commission Act, 2014—and declared them unconstitutional and void as they violate the basic structure of the Constitution of India. 

Evolution of Collegium System

The role of collegium in judicial appointment is a byproduct of case laws. The following three important judicial pronouncements, which gave birth to the collegium system, are together popularly known as ‘Three Judges Case‘. It has no place in the Constitution of India. 

First Judges Case (1982) – The seven-judge Constitutional Bench in S.P. Gupta vs. Union of India (1982) also popularly known as First Judges Case, the apex court held that ‘consultation’ does not mean ‘concurrence’ and ruled that the concept of primacy of the Chief Justice of India is not found in the Constitution of India. It was also held that proposal for appointment to High Court can emanate from any of the four constitutional functionaries mentioned in Article 217 and not necessarily from the Chief Justice of the High Court. The Judgment tilted the balance in favour of the Executive in the appointment of judiciary. This continued for 12 years.

Second Judges Case (1993) – The nine-judge Bench in the Supreme Court Advocates-on Record Association vs. Union of India (1993), also known as Second Judges Case, the apex court over-ruled the decision in S.P. Gupta Case (1982) with 7:2 majority.

The court observed that Chief Justice of India should be given the primary role in the appointment process of judges. The court stated “justiciability” and “primacy” as the main reason behind the decision. 

The Supreme Court held that “consultation” really means “concurrence” and a collegium system was introduced for the appointment of judges.

The reason behind the collegiums system’s inception was that it shows the collective opinion of the senior most judges involved in the process of judicial appointment rather than an individual opinion. 

Third Judges Case (1998) -The Second Judges decision was reaffirmed unanimously in Third Judges Case (1998) by the nine-Judge Bench of the Supreme Court on a reference being made by the President under Article 143 of the Constitution.

 It also held that the recommendation should be made by the Chief Justice of India and his four senior-most colleagues.

Thus, it is established that the sole opinion of the Chief Justice is binding on the Government in the matter of appointment of the Judges of the Supreme Court and High Courts. 

Memorandum of Procedure (MoP) Like collegium, MoP is also a judicial innovation which was drafted by the Ministry of Law and Justice (Department of Justice) as per the directions given by Supreme Court in the Second and Third Judges cases. It lays down a detailed process and procedure for appointment of Judges in higher judiciary. There are two MoPs, one for the appointment of Judges of the Supreme Court  and the other for the appointment and transfer of High Court Judges.

Comparative Analysis of Appointment Mechanisms in Other Countries 

Judicial Appointments in the United States of America: Judges of the Federal Court are appointed by the President with the advice and consent of the Senate. The candidates are assessed by a committee of the American Bar Association and reviewed by the Senate Judiciary Committee before a vote in the Senate. There is no set retirement age for judges in the US as they continue to hold office for “good behaviour”. 

Judicial Appointments in the United Kingdom: The appointment process in the UK went through a change in 2005 when the UK Supreme Court replaced the House of Lords. The power was shifted from the Lord Chancellor to the Judicial Appointments Commission that consisted of barristers, judges, laypeople, solicitors, and magistrates. However, the residual power rested with the Lord Chancellor to reject candidates based on merit.