What are the Issues Related to the Collegium System?

Collegium System in India

Articles 124(2) and 217 of the Indian Constitution deal with appointing judges to the Supreme Court and High Courts.

In India, the President is the nominating authority who chooses judges based on the collegium’s recommendations. The Collegium System is not mentioned in the Indian Constitution or any other legislation. However, the Hon’ble Supreme Court of India reiterated the country’s judiciary’s independence and political influence in judge nominations. Supporters support the collegium system because it ensures the freedom of the judiciary and the nomination of deserving and unbiased judges in the country. However, detractors believe it is an ineffectual method since the collegium system lacks transparency and accountability and is frequently accused of nepotism and corruption.

Article 124(2) talks about the appointment of Supreme Court Judges and states, “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 Court 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 Chief Justice of India shall always be consulted……”

Therefore, the power to appoint the Supreme Court Judges (including the Chief Justice of India) vests with the President of India. However, this needs to be done in “consultation” with the Chief Justice of India (CJI) in the case of a Supreme Court judge other than the CJI.

Article 217(1) talks about the appointment of High Court Judges and states, “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years……”

Therefore, the judges to the High Courts are appointed by the President upon “consultation” with the Chief Justice of India and the Governor of the relevant state and the Chief Justice of the High Court also, in case of a judge other than the Chief Justice of the High Court. The word “consultation” has been interpreted by the Supreme Court in various case laws (discussed later) which led to the evolution of the Collegium System in India.

Who Heads the Collegium System?

The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior-most judges of the court.
A High Court collegium is led by the incumbent Chief Justice and two other senior-most judges of that court.
Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.

The Collegium System in India is nowhere mentioned in the Constitution and it evolved through the judicial interpretations of these constitutional provisions by the Supreme Court in the landmark case laws which are now collectively called “Four Judges Cases”.

First Judges Case

The seven-judge bench determined the matter in the First Judges Case, S.P. Gupta v. Union of India, AIR 1982 SC 149, and introduced the notion of the collegium system in India. The court analyzed the regulations governing the appointment of judges in this case and made significant observations. The court stated that “the Chief Justice of India, the Chief Justice of the High Court, and such other Judges of the High Courts and of the Supreme Court…. are merely constitutional functionaries having a consultative role, and the power of appointment resides solely and exclusively in the Central Government.” However, such consultation should take place.

The court ruled that the Central government was not required to follow and might overturn the opinions of such constitutional authorities, even if their opinions were similar and unanimous. It further stated that when opinions differ on the nomination of a Judge in a High Court, the opinion of any of the constitutional functionaries cannot take precedence, and it is up to the Central Government to decide whether the appointment should be made or not. In the instance of Supreme Court judge appointment, the view of the Chief Justice of India (CJI) cannot be given precedence because the provisions include consultation rather than “concurrence.” Finally, the court’s verdict this case favored the executive (central government), and the executive remained the authority in India with the right to nominate judges.

However, the court in this case concluded that the then-current procedure of appointing judges was insufficient. The court recommended that a collegium comprised of people who are expected to have knowledge of the people who may be fit for appointment on the Bench and of the qualities required for appointment be formed to advise the President on the appointment of judges, which should be broad-based and involve consultation with people with broader interests.

Second Judges Case

In the Supreme Court Advocates on Record Association And Anr. v. Union of India, 1993 Supp (2) SCR 659, the nine-judge bench overruled the judgement in the ‘First Judges Case’. The court also emphasised the independence of the judiciary in this case and even observed that “The requirement of prior “consultation” with the superior Judiciary is a logical consequence of having an “independent Judiciary” as basic feature of the Constitution.”

In the case of Supreme Court judges appointed under Article 124, the CJI’s opinion shall be the collective opinion of the “Chief Justice of India, two senior-most Supreme Court Judges, and the senior Supreme Court Judge who comes from the State.”In the case of High Court judges appointed under Article 217, the process will begin with the CJI’s recommendation, which will include the views of two senior-most Judges of the High Court, two senior-most Judges of the Supreme Court, and the opinion of the senior Judge conversant with the affairs of the concerned High Court.

The Supreme Court ruled that the Chief Justice of India’s opinion shall take precedence in the appointment of judges, and no appointment can be made unless it is in accordance with the Chief Justice of India’s position. In terms of the transfer of justice/judge under Article 222, the court ruled that the motion will be launched by the CJI, and the recommendation will be binding on the Executive.]The ‘Second Judges Case’ was how the collegium system was adopted in India to appoint judges.

Third Judges Case

In the ‘Third Judges Case’ (Special Reference Case 1 of 1998), the Supreme Court expanded the strength of the collegium which now includes the CJI and four senior-most Supreme Court judges in case of a Supreme Court Judge appointment or High Court Justice/Judge transfer and two senior most Supreme Court judges in case of a High Court Judge appointment It also defined the meaning of consultation and held that “the expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India.”

Fourth Judges Case

The Supreme Court ruled in Advocates on Record Association and Anr. v. Union of India, (2016) 5 SCC 1, that the 99th Constitutional Amendment Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014 were unconstitutional and void.The NJAC was composed of the Chief Justice of India (as Chairman), two senior most Supreme Court judges, the Law and Justice Minister, and two eminent persons (selected by a committee comprised of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition) who would make recommendations to the President regarding judicial appointments.