The Collegium System And Its Quest To Become a Transparent, Diverse and Accountable Body
For almost two decades the Judges of the top courts in India have been chosen by their colleagues, this system is known as the collegium system. However, recently several senior officials have raised their voices against the collegium system such as the former law minister and the vice-president. It is thus essential to look into the system and critically analyse it.
The Evolution Of The Collegium System
Prior to the collegium system, the executive had a considerable influence over the appointments of the judiciary. Until 1973, the Chief Justice of India was always the senior-most judge of the Supreme Court. With this, there was a consensus between the Executive and the Judiciary regarding the appointment of the Chief Justice.1
However, in 1973, Justice A.N. Ray was appointed as the Chief Justice superseding three Judges senior to him, this violated the pre-existing conventional method of appointment.2
This led to the First Judges Case (S.P. Gupta vs Union of India)3 which brought to light several constitutional questions about the appointment and transfer of judges. A seven-judge bench ruled that the term “consultation” did not imply “concurrence”, stating that the power to appoint judges under Article 124 was vested with the President. It affirmed that the President was not bound by the recommendations of the CJI and that the CJI’s recommendations could be rejected for “cogent” reasons. This case also held that it is possible to transfer a high court judge to another state even against his will.
The Second Judges Case (Supreme Court Advocates-on-Record Association vs Union of India)4, ended up overruling the First Judges Case. In this case, the ruling of the First Judge case was questioned. A nine-judge bench was constituted to address two main issues. The first one being, whether the CJI’s recommendation regarding the appointment and transfer of judges was held primacy. The second one is, whether the determination of the judge’s strength in High courts was subject to judicial review. This judgement laid the stone for the present collegium system.
The Third Judges Case is not exactly a case but rather an opinion given by the Supreme Court5 . In response to doubts raised regarding the interpretation of the Second Judges Case, the President of India referred nine questions to the Supreme Court under Article 143. A nine-judge Bench unanimously answered the reference on October 28, 1998. The court affirmed that the collegium of judges holds the final authority for judicial appointments with the President required to concur with their recommendations. The Supreme Court also held that the CJI is required to sit and consult with four senior-most judges of the Supreme Court when making recommendations for appointments or transfers. The CJI cannot act independently and if two judges are against a recommendation then the CJI must not send the recommendation to the President.
Thus, these three cases laid the foundation for the present-day collegium system of appointment.
The National Judicial Appointment Commission Act, 2014
The collegium system has received backlash for its lack of transparency and accountability, this led to the National Judicial Appointment Commission Act, 2014 (NJAC) to replace the Collegium system for the appointment and transfer of judges. The NJAC aimed to create a more balanced and transparent mechanism by involving the executive branch of the government in the appointment process. However, the NJAC faced backlash and legal challenges before being struck down by the Supreme Court of India.6
The key provisions of the NJAC included the establishment of a six-member commission, consisting of the Chief Justice of India, two senior judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons nominated by a committee comprising the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha (Lower House of Parliament).
However, the NJAC faced challenges regarding its constitutionality and was subsequently declared unconstitutional by a five-judge bench in 2015.
Criticisms Against The Collegium System
The collegium system has faced backlash for several reasons in recent years. Perhaps the main criticism that the Collegium System faces is the lack of transparency. The decision-making process behind the appointments is not publicly disclosed which raises questions about the criteria that are considered in these appointments. This raises concerns about nepotism and favoritism which undermines the credibility of the appointment. The lack of clear rules and guidelines about the appointment process is another point of contention. The absence of a structured framework makes it difficult for the stakeholders to understand how the appointment was made.
One of the persistent issues with the collegium system is its inefficiency and the delays in appointments. The Supreme Court in turn blames the Government for the non-appointment of Judges even after their recommendations have been reiterated. Due to this, there is a huge vacancy that is created. To give an idea about this vacancy we can see that currently, 27 judges sit in the Supreme Court which is seven short of the sanctioned 34. And appointments of over 100 judges are still waiting for approval from the Government.7
Another argument against the collegium system is that no other country has a system like the Indian collegium system. The collegium system is completely unique to India and it is argued that there is a reason why no other country has adopted a similar system due to the many flaws present in the collegium system. Some also argue that the collegium system itself is unconstitutional as there is no explicit mention of the system in the Indian constitution.
Additionally, it is argued that there is no mechanism to hold Judges accountable, they are not elected by the public and once they get appointed most of them sit until retirement. Due to this if Judges act against the wishes of the public, there is no way to hold them accountable. This gives the judges immense power as only they are able to hold each other accountable, such a situation may lead to the misuse of power.
Yet another criticism that the collegium system faces is the lack of diversity. A diverse judiciary is of vital importance in a diverse democracy like India, it helps bring in different views and perspectives. The Indian judiciary though suffers from chronic under-representation of minorities. The majority of the posts are occupied by men, and only a small percentage of judges are women. There is also a lack of regional and linguistic diversity. This calls for a more inclusive appointment system that ensures that the judiciary is not dominated by the privileged and male sections of society.
Call For Reforms And Progress
While the debate over the collegium system has been happening for a while, it has recently reached its apex with several prominent personalities speaking up against the system.
The former law minister Kiren Rijiju has raised his voice against the collegium system several times. He claims that the people of the country are not satisfied with the present collegium system and that according to the constitution, the appointment of the judges should lie with the Centre and shouldn’t be left to the judges themselves. He claims that half the time judges waste their time in deciding who will be the next Judge when they should be spending their precious time delivering justice.
In response to these criticisms, the Supreme Court has taken certain measures to amend the appointment process such as publishing the collegium resolution which contains reasons for the appointment, making the appointment process more transparent.
Very recently, the CJI, D.Y. Chandrachud has revealed the intention for a research wing of the Supreme Court known as the Centre for Research and Planning to support the Permanent Secretariat of the Collegium. This initiative aims to bring a greater level of objectivity to the decision-making process of the Collegium, ensuring a more evidence-based approach. The CRP will provide data on the top fifty most senior judges of the High Courts.8
Conclusion
While the present system of appointing judges helps maintain the independence of the judiciary, it is not free from several flaws such as lack of transparency, accountability, representation and indefinite delays. There have been certain measures taken by the Supreme Court to make the collegium system more efficient and transparent but there is still a long way to go to make the collegium system an accountable and diverse authority.
- Biswas, S. (2023) Supreme Court Collegium: The growing row over picking judges in India, BBC News. Available at: https://www.bbc.com/news/world-asia-india-64372672 (Accessed: 15 June 2023). ↩︎
- Revisiting the Collegium System, 2.1 JCLJ (2021) 294 ↩︎
- AIR 1982, SC 149 ↩︎
- (1993) 4 SCC 441 ↩︎
- Special Reference No 1 of 1999 AIR 1 SC 1999 ↩︎
- Chakraborty, D. (2023) Indian judiciary’s well-being is at stake. conflicts over collegium system can create tension, ThePrint. Available at: https://theprint.in/opinion/indian-judiciarys-well-being-is-at-stake-conflicts-over-collegium-system-can-create-tension/1298862/ (Accessed: 15 June 2023). ↩︎
- Biswas, S. (2023) Supreme Court Collegium: The growing row over picking judges in India, BBC News. Available at: https://www.bbc.com/news/world-asia-india-64372672 (Accessed: 15 June 2023). ↩︎
- (2023) Supreme Court’s Research Wing To Assist The Permanent Collegium Secretariat For Appointment Of Judges: Chief Justice Chandrachud , LiveLaw . Available at: http://www-livelaw-in.opj.remotlog.com/top-stories/permanent-collegium-secretariat-supreme-court-research-wing-transparency-working-of-collegium-system-226314?infinitescroll=1 (Accessed: 15 June 2023). ↩︎
