The Collegium system has failed India

Context: There are not enough judges at all levels of the judicial hierarchy to deal with the increased workload. The result is that there is little time to reflect on issues which can change the course of the nation’s march forward. The collegium system has also been in news for tussles between the judiciary and the executive and the slow pace of judicial appointments.

About collegium system:

The collegium system, not originally mentioned in the constitution, is a process for appointing judges to the Supreme Court and High Courts in India.

Supreme Court Appointments:

• As per Article 124 of the constitution, Supreme Court judges are appointed by the President of India after consulting with the Chief Justice of India (CJI) and other judges as deemed suitable.
• The collegium for Supreme Court appointments comprises the CJI and the four most senior judges of the Supreme Court.
• Appointments can involve elevating High Court judges to the Supreme Court or directly appointing experienced lawyers.

High Court Appointments and Transfers:

• According to Article 217, High Court judges are appointed by the President in consultation with the CJI, the Governor of the State, and the Chief Justice of that High Court.
• For transfers, the President may move a judge from one High Court to another after consulting with the CJI.
• The High Court collegium, consisting of the Chief Justice of the High Court and two other senior-most judges, recommends judicial appointments. However, the final decision lies with the Supreme Court collegium.

Role of Supreme Court Collegium:

• The Supreme Court collegium, consisting of the CJI and the two most senior judges, not only decides on appointments but also handles the transfers of High Court judges across the country.

Evolution:

The evolution of the collegium system in India traces back to the constitutional provisions regarding the appointment and transfer of judges.

Constitutional Framework:

• Initially, the Constitution vested the President with the authority to make appointments to the Supreme Court and High Courts and to transfer judges between High Courts.
• The President, acting on the advice of the council of ministers, was required to consult authorities like the Chief Justice of India (CJI) or the appropriate Chief Justice of the High Court, aiming to minimize executive influence and political interference.

First Judges Case (1981 - SP Gupta case):

• The Supreme Court ruled that "consultation" did not imply "concurrence," making the CJI's opinion non-binding on the executive.

Second Judges Case (1993):

• The court reversed its earlier stance, stating that "consultation" now meant "concurrence," making the CJI's advice binding on the President.
• The term "collegium" was introduced, and the CJI was to form an opinion through a body of senior judges.

Third Judges Case (1998):

• The collegium composition was clarified:
  • For Supreme Court appointments: CJI and four senior-most colleagues.
  • For High Court appointments: CJI and two senior-most colleagues, consulting other senior judges from the Supreme Court who had served in the concerned High Court.
• On whether the views of consultee-judges were binding on the collegium, the judgments remained silent.
• National Judicial Appointments Commission (NJAC):
  • The government attempted to replace the collegium with the NJAC through the 99th constitutional amendment.
  • The NJAC included the Union Minister for Law and Justice and two eminent persons, along with the CJI and the next two senior-most Supreme Court judges.
• Fourth Judges Case (2015):
  • The court affirmed the judiciary's primacy in judges' appointments as a fundamental aspect of the Constitution's basic structure.
  • It declared the NJAC unconstitutional, emphasizing that the law gave politicians an equal say in judicial appointments to constitutional courts.

Significance of collegiums system:

The Collegium System is deemed necessary for several reasons:

1. Preservation of Judicial Independence:

• It ensures the independence and impartiality of the judiciary by separating it from the influence of the executive and legislative branches.
• This upholds the principle of the separation of powers, preventing any organ of the State from interfering in the functioning of another.

       2. Effective Separation of Powers:

• The Collegium System strengthens the principle of the separation of powers, emphasizing that no state organ should intervene in the affairs of another.

      3. Judicial Autonomy from the State:

• With a significant portion of cases involving the government as a litigant, giving the executive power to transfer judges could potentially hinder the delivery of justice.
• The Collegium System prevents the fear of politically motivated transfers that might impede the impartial administration of justice.

4. Specialized Appointment Process:

• The executive organ may lack the specialized knowledge required for judge appointments.
• The Collegium, being a body of judicial experts, is better suited for appointing judges who possess the necessary qualifications and expertise.

5. Prevention of Nepotism and Political Interference:

• The Collegium System serves as a safeguard against nepotism and political interference in the judiciary.
• Instances of civil servants being transferred for political gains are mitigated, ensuring a fair and stable judicial system.

6. Enhanced Judicial Stability:

• By providing stability to judges, the Collegium System contributes to the overall consistency and reliability of the judicial process.

Challenges

The functioning of the collegium system in India is marred by several issues:

1. Lack of Transparency in Appointments:

• The collegium's operations are perceived as opaque, lacking defined norms for eligibility criteria and selection procedures.
• There is a lack of public information regarding when and how the collegium meets, and decisions are made without official minutes of the proceedings.

2. Nepotism and Favouritism:

• Allegations of nepotism and favoritism are prevalent, with judges in the collegium accused of recommending their close relatives for appointments.

3. Diversity Concerns:

• The absence of an institutional mechanism to ensure diversity on the Bench poses a challenge.
• Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward Classes (OBCs), and minorities are significantly underrepresented in collegium selections.

4. Vacancy Challenges:

• Despite concerns about the backlog of cases, there is a persistent issue of non-filling of judicial vacancies in the Supreme Court.

5. Internal Conflicts:

• Conflicting opinions among collegium members hinder the effective functioning of the system.
• Recent instances, such as the differing views on circulating recommendations for Supreme Court appointments, exemplify internal disagreements.

6. Challenges with Conventions:

• Certain conventions, like the cessation of decision-making by the Collegium once a recommendation for the CJI's successor is made, pose challenges.
• This convention, based on seniority, may lead to shorter tenures for CJIs and potentially slow down decision-making processes.

Long pendency of cases:

• Decisions made after years have no relevance since the damage is already done and the clock cannot be turned back.