Collegium System of Appointment of Judges in Supreme Court

Recently, Leader of opposition in Rajya Sabha Arun Jaitley said that collegium system of appointing judges also lacks in terms of quality and integrity. The standard needs to be improved far more. Here is a brief backgrounder on appointment of Judges of Supreme Courts:

Article 124(2) of Constitution of India says:

“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.”

We see that article 124(2) speaks of ‘consultation’ with Chief justice of India in the case of appointment of a Judge other than the Chief Justice. Till 1981, a practice in appointment of judges of Supreme Court followed in which Chief Justice of India initiated the proposal, very often in consultation with his senior colleagues and his recommendation was considered by the President and, if agreed to, the appointment was made.

However, right from the beginning, there was a debate that the expression should be “concurrence” and not ‘consultation‘.

In 1980s, a Supreme Court Constitution Bench in S.P. Gupta vs. Union of India, held that ‘consultation’ does not mean ‘concurrence’ and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution.

In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association Vs. Union of India (1993) over-ruled the decision in S.P.Gupta Case. The nine-Judge Bench (with majority of seven) not only overruled S.P. Gupta‘s case but also devised a specific procedure for appointment of Judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary.” For the same reason, the primacy of the Chief Justice of India was held to be essential.

The bench held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive.

Thus, 1993, Chief Justice of India got primacy in appointing judges, and till this time, it was the government’s job to fill vacancies in HCs and the SC. But later, the SC devised the collegium system headed by the CJI to make recommendation to the government for appointment of judges.

• Now a committee of 5 senior most judges recommends the names to the law ministry which after scrutinizing send the paper to the president.
• The president either approves the names or returns the names for reconsideration of the Supreme Court. If still the Supreme Court sends the same names president appoints the persons recommended.