Collegium System of Judicial Appointments in India

The constitution of India has established an integrated judicial system with Supreme Court at the top and High Courts for states. Under a high courts, there is a hierarchy of subordinate courts viz. district courts and other lower courts. This single system of courts, adopted from the government of India act of 1935, enforces both central as well as state laws.

Appointment of judges in Higher Judiciary

The judges of the Supreme Court and High Court in India are appointed by President as per article 124(2) and 217 of the constitution. In such appointment, the President is required to hold consultation with such of the Judges of the Supreme Court and of the High Courts in the States as he may deem necessary for the purpose. In this regard, Article 124 (2) 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.

In the above description, the buzzword is “consultation“. For the president to make appointment, consultation with these judges is must.

Initially, the Chief Justice of India used to initiate the proposal for appointments, 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, President, as the constitutional head, acts upon the aid and advice of Union Council of Ministers.  Thus, practically, the proposal of the Chief Justice was to be acceptable to the government. There seemed to be a balance between the executive and the judiciary on the matter of appointments of judges of the higher judiciary.

But since the Chief Justice of India used to initiate the proposals, the following questions were raised:

• Is Chief Justice of India granted primacy over other judges by the Constitution to initiate such proposals? The clear answer is no, because it was a tradition and not constitutional prerogative.
• Why proposal for appointments in the High Court cannot emanate from any other judges than Chief Justice?

In the S.P. Gupta vs. Union of India (1982), the SC in a majority judgement held that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution. It was held that proposal for appointment to High Court can emanate from any of the constitutional functionaries mentioned in Article 217 and not necessarily from the Chief Justice of the High Court. These functionaries are:

• Chief Justice of India
• Governor of the State
• Chief Justice of the High Court

The Supreme Court also held that Consultation is not concurrence. This means that though president will consult these functionaries yet his decision is not to be a concurrence of all of them. This further implied that if President wished to do so, he / she could appoint without agreeing to any of these. Thus, the balance of power in appointments of judges of the High Courts tilted in the favour of the executive because now the executive could consult with the governor or any other functionary among the above and appoint the judges. The office of the Supreme Court of India got diminished in its importance in this matter. This S P Gupta case is known as the “First Judges Case”.

After this judgment, few appointments were made by the Executive over-ruling the advice of the Chief Justice of India. Later, in the Supreme Court Advocates-on-Record Association Vs. Union of India (1993), a nine member bench of the Supreme Court not only over-ruled the decision in S.P. Gupta 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.”

Via this judgement:

• “Primacy of the Chief Justice of India was held to be essential for protecting the integrity and guarding the independence of Judiciary”
• It was held that the recommendation 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.

The Supreme Court relied upon various systems in other countries and also DPSP Article 50, which speaks of separation of judiciary and executive and excluded any executive say in the matter of appointment to safeguard the “cherished concept of independence.”

It held at the same time that it was open to the executive to ask the Chief Justice of India and his two colleagues to reconsider the matter, if they have any objection to the name recommended but if, on such reconsideration, the Chief Justice of India and his two colleagues reiterated the recommendation, the executive was bound to make the appointment. The Supreme Court Advocates-on-Record Association Vs. Union of India (1993) case is also known as “Second Judges Case”.

The Collegium System

Thus, the 1993 decision passed the power of judicial appointments into the hand of the judiciary and role of executive became only formal. The 1993 decision was reiterated in 1998 by a nine-Judge Bench of the Supreme Court on a reference being made by the President under Article 143 of the Constitution (advisory jurisdiction).The Special Reference case of 1998 is also known as the “Three Judges Case”.

However, at this time, it was held that the recommendation should be made by the Chief Justice of India and his four senior-most colleagues (instead of two) and further that Judges of the Supreme Court hailing from the High Court to which the proposed name comes from must also be consulted. It was also held that even if two judges give an adverse opinion, Chief Justice of India should not send the recommendation to the government and that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process are not binding on the government.

The Chief Justice of India and his four senior-most colleagues are now generally referred to as the ‘Collegium’ for the purpose of appointment of Judges to the Supreme Court.

Problems with the Collegium System

The above discussion makes it clear that before 1993, the Executive muzzled with the Judiciary in the matter of judicial appointments and the Collegium system evolved so that independence and separation of judiciary from executive can be maintained. For the last two decades, the appointment of the judges has been an appointment by the judges. But now, it seems that it is appointment “for the judges”.  It appears that the Collegium system of judicial appointments has resulted in incompetent, inefficient, ethically compromised individuals being appointed as judges.

For instance, in May 2013, the judges of the Punjab and Haryana High Court protested the elevation of nine advocates as judges of the high court. They alleged that the independence and integrity of the judiciary has been put at stake by the Collegium while giving recommendations because the decisions of the Collegium seem to have been based on considerations other than merit and integrity of the candidate.

These judges further wrote that it has now become a matter of practice and convenience to recommend advocates who are the sons, daughters, relatives and juniors of former judges and Chief Justices. Nepotism and favouritism is writ large.

The implications of such degradation are that the judges are selected on criteria such as caste, religion, office affiliations, political considerations and even personal interests and quid pro quo.

The result of this is the poor quality of judges and judgements. It resulted in delay in the judgement delivery, lack of clarity and clear reasoning in judgements, lack of knowledge of even basic principles of law and lack of ability and willingness to learn, ghost writing of judgements.

The collegium system of the appointments also raises demands for transparency and openness in the appointment process because of the secrecy shrouding the appointments.

The issue is NOT who appoints the judges but is how they are appointed. As long as the process is opaque and appointments are made on personal considerations, there will be problems of favouritism, nepotism and appointments on criteria other than merit and capability.

To overcome the above deficiencies in the Collegium system, the parliament passed the National Judicial Appointment Commission (NJAC) act 2014.