Collegium System in India: Judicial Appointments and Independence

GS-II | Indian Polity & Constitution | Judiciary | Separation of Powers | Judicial Reforms

Introduction

• Justice Sanjay Kaul, a retired judge of the Supreme Court, has said that former Chief Justice of India D.Y. Chandrachud could have shared the possible candidates for appointment as judges with the Union government prior to the Collegium meeting to consider those candidates.
• He described this as asking the government for its “pre-approval” to make a decision, and how this weakens the independence of the courts.

Constitutional Provisions

• Article 124: The judges of the Supreme Court are to be selected by the President, with consultation from the Chief Justice of India (CJI).
• Article 217: The President will appoint judges to a High Court based on recommendations from the Chief Justice of India (CJI), the Chief Justice of that High Court and the Governor of the relevant state.

Original Constitutional Framework:

• Provided for consultation between the executive branch and the judicial branch prior to appointment.
• The objective of this process was to preserve the independence of the judiciary and maintain the high standard of judges, because only they can determine whether or not prospective judges possess the necessary knowledge and skills.

Evolution of the Collegium System

• First Judges Case (1981): The Supreme Court upheld the authority of the executive branch to make judicial appointments, based on the principle that the executive branch is responsible to the citizens.
• Second Judges Case (1993): In order to keep judges independent of politics and prevent political influence on who is appointed, the Supreme Court developed the Collegium System for appointing judges.
• Third Judges Case (1998): Confirmed the collegium system and explained how it works.

Composition of the Collegium

• Supreme Court appointments: CJI + four senior-most Supreme Court judges.
• High Court appointments: CJI + two senior-most Supreme Court judges.

Memorandum of Procedure (MoP), 1998

The Union Law Ministry’s 1998 “Memorandum of Procedure” (MoP) documents the step-by-step process used for appointing judges to the courts. It is based upon the principles established in the Second Judges Case and Third Judges Case.

Appointment Procedure:

• The collegium submits proposals for appointment of judges to the higher judiciary and makes recommendations regarding these appointments to the central government.
• In the event of an objection or concern about the suggested names, the Centre has the option to make a suggestion.
• If the collegium reiterates its recommendation, the appointment should be made.

Current Status:

• Following the decision on NJAC, the government and judiciary had agreed to make revisions to the MoP so that there would be more transparency when appointing judges.
• Because of differing opinions regarding several sections of the revised MOP, it has not yet been approved.

National Judicial Appointments Commission (NJAC)

The Parliament passed the 99th Constitutional Amendment Act of 2014 creating the National Judicial Appointments Commission (NJAC) so it could make recommendations regarding appointments to the judiciary.

Composition:

• Chief Justice of India.
• Two senior judges of the Supreme Court.
• Union Law Minister.
• Two eminent persons.

Supreme Court Judgment (2015):

• The Supreme Court struck down the NJAC and the 99th Constitutional Amendment.
• The Court ruled that the NJAC violated the basic structure of the Constitution, especially the principle of judicial independence.
• Consequently, the collegium system continues for judicial appointments.

 International Practices

USA:

·         The President nominates the Judges of the Federal Supreme Court. The Senate then approves these Judges.

United Kingdom:

• The independent Judicial Appointments Commission (JAC) is made up of fifteen commissioners, each of whom has been selected from either the judiciary, the legal profession, or the public.
• Selects candidates for judicial offices in courts and tribunals.
• UK Supreme Court appointments are made through a selection panel that includes the President of the UK Supreme Court, a senior UK judge, and three additional individuals, one of which is a member of the JAC.

South Africa:

• The JSC has 23 commissioners who include the chief justice, as well as those representing the judicial branch, the legislative branch, the executive branch, the legal community and academic institutions.
• Recommends names to the President for appointment of judges.

Challenges of the Collegium System

• Lack of Clarity in the Appointment Process: There is a lack of clarity in how judges are appointed.
• Lack of Accountability: The lack of an effective institutional mechanism to hold individuals accountable during the hiring/selection process.
• Allegations of Nepotism: The allegations of nepotism concern the perception that there is a bias in favor of the relatives and friends of current judges.
• Executive-Judiciary Conflict: The executive and the judiciary have had a conflict concerning the appointment of judges, as well as delays in finalizing the recommendations for those appointments.
• Limited Representation: Adequate representation of the various sections and backgrounds of society within the higher judiciary is needed.

 Way Forward

• Finalization of the Revised Memorandum of Procedure (MoP): Ensure transparency and consultation during the appointment of judges.
• Broader Composition: Consider reviving the NJAC with a larger composition of members, such as those that are representative of the legislative body, Bar Council, and academic community, similar to the practice in South Africa and the United Kingdom.
• Judicial Veto: The judiciary can have a veto on the final decision so that it retains its independence.
• Transparency and Accountability: Create clear selection criteria for hiring and address questions about allegations of nepotism or favoritism.

Conclusion

• The Collegium System has provided the Judiciary with independence from the Executive on issues related to Judicial Appointments. However, issues related to Transparency and Accountability require that changes be made to the system.
• India must have a balanced system for appointing judges that maintains judicial independence, transparency, merit and accountability without violating the core principles of the Indian Constitution.

UPSC Mains Practice Question

Q. The Collegium system has provided for judicial independence within the Indian context, however, it has also created concerns about both the transparency and accountability of its operations. Please critically analyze the current method of appointing judges to the judiciary in India, and provide recommendations for reform.

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