Collegium System

The Collegium System is a system through which judges of the Supreme Court and High Courts are appointed and transferred.

• It is not mentioned in the Constitution but has evolved through Supreme Court judgments.
• The Supreme Court Collegium consists of the Chief Justice of India (CJI) and the four senior-most Supreme Court judges.
• The High Court Collegium consists of the Chief Justice of the concerned High Court and its two senior-most judges.
• The Collegium recommends names for judicial appointments and transfers.
• The government can raise objections and seek clarification. However, if the Collegium reiterates its recommendation, the government is expected to accept it.

Constitutional Provisions for Judicial Appointments

Article 124 – Appointment of Supreme Court Judges

• Supreme Court judges are appointed by the President of India after consultation with the judges as considered necessary.
• The Chief Justice of India must be consulted for all appointments except his/her own appointment.

Article 217 – Appointment of High Court Judges

• High Court judges are appointed by the President of India after consultation with the Chief Justice of India, the Governor of the concerned state and the Chief Justice of that High Court.

Collegium System – Evolution

The Collegium System evolved through three important Supreme Court judgments, commonly known as the Three Judges Cases.

1. First Judges Case (1981) – S.P. Gupta v. Union of India

• The Supreme Court held that consultation does not mean concurrence (agreement).
• The government had the final authority in judicial appointments.

2. Second Judges Case (1993) – Supreme Court Advocates-on-Record Association v. Union of India

• • The Supreme Court reversed its earlier decision and held that the CJI’s opinion would have primacy in judicial appointments.
  • The CJI was required to consult the two senior-most Supreme Court judges before making recommendations.

• This judgment established the Collegium System.

3. Third Judges Case (1998)

• The Supreme Court expanded the Collegium to include the CJI and four senior-most Supreme Court judges.
• It emphasised that judicial appointments should reflect the collective opinion of senior judges rather than the individual opinion of the CJI.
• If two members express disagreement, the recommendation should not be forwarded to the government.

4. National Judicial Appointments Commission (NJAC), 2014

• The 99th Constitutional Amendment and the NJAC Act, 2014 were introduced to replace the Collegium System.
• However, in 2015, the Supreme Court declared the NJAC unconstitutional, stating that it could affect judicial independence.

Criticism of the Collegium System

• Lack of Transparency: The reasons behind the selection and rejection of candidates are not always made public.
• Judicial Vacancies: Delays in recommending and appointing judges contribute to vacancies and increase the pendency of cases.
• Nepotism and Favouritism: The system has been criticised for favouring candidates based on personal and professional connections rather than merit alone.
• Lack of Accountability: Since the executive has a limited role in the selection process, concerns arise regarding the absence of adequate checks and balances.Lack of Diversity: The system does not ensure adequate representation of women and different social groups in the higher judiciary.
• Unclear Transfer Decisions: The reasons for transferring judges are generally not disclosed, raising concerns about transparency and judicial independence.

Way Forward

• • Reform the MoP: The existing Memorandum of Procedure should be revised to make judicial appointments more transparent and systematic.

• Memorandum of Procedure (MoP):
• • The MoP provides the rules and procedures for appointing judges to the Supreme Court and High Courts.
  • It was framed jointly by the government and the judiciary in 1999.
  • It explains the process through which the Collegium recommends names to the government for judicial appointments.
• Clear Eligibility Criteria: Objective criteria based on merit, experience, integrity and suitability should be established for selecting judges.
• Improve Transparency: The Collegium should properly document its discussions, decisions and reasons for recommending or rejecting candidates.
• Strengthen Checks and Balances: A suitable mechanism should ensure constructive cooperation between the judiciary and executive without compromising judicial independence.