Understanding the Collegium System

 

Collegium System

Introduction:

The collegium system is an unique method of appointments of judges to higher judiciary, however it has been a subject of debate and scrutiny in many years. How did it originate in India? The Collegium system has been adopted by several countries as a means to maintain judicial independence and ensure a fair legal system.

This Collegium system is not given anywhere in the Constitution of India. Even though it evolved through the Supreme Court's judgments (The three main judgements). Collectively these judgments are known as the Three Judges Cases (1981, 1993 and 1998).

In this article, we will see all the key factors which impact the legal system within the structure of the Collegium system, considering societal expectations, the process of judge appointments, and the overall impact on the judiciary.

Constitutional Provisions

Article 124 - According to this article the judges of the Supreme Court should be appointed by the President of India by consultation with High Court and Supreme Court judges. Then, the President appoints the person as he may think appropriate. Apart from this, Chief Justice of India (CJI) should be consulted with the president in all high court and supreme judges appointments.

Article 217 - The President must choose High Court judges having consultation with the state governor and the CJI. Consultation should also be held with the Chief Justice of the relevant High Court.

Evolution of the System:

First Judges Case (1981):

The Supreme Court defined the meaning of consultation as stated in Article 124 of the Constitution in the 1981 decision of S.P. Gupta v. Union of India, popularly referred to as the First Judge Case. The court stated that consultation is a process of appointing judges which does not need concurrence. It just involves the exchange of views.

This case defined the “superiority” of CJI on recommendation of judicial appointments and transfers can be stopped by “logical reasons.” The ruling gave primacy in the hands of the Executive over judicial appointments for the next 12 years.

Second Judges Case (1993):

The second case was filed by the Supreme Court Advocates-on-Record Association (SCARA) under which the Supreme Court reversed its previous judgement and changed the definition of consultation to concurrence.

It was said that the president would be bound by the CJI's recommendations regarding the selection of judges. However, before providing such advice, the CJI must also discuss with two senior most judges.

Third Judges Case (1998):

The "consultation of judges" is important for the chief justice consultative process. In accordance with this, a number of judges will be members of the collegium system then after consultation with each other they give the recommendation of appointments to the judges.

The CJI at least consulted with four senior most judges of the Supreme Court before giving the list of names. Even if two judges disagree, the CJI should not suggest the names to the president.

Judge Appointments and the Collegium System

Unlike other systems where executive or legislative branches play a major role or direct role, the Collegium system is independent to make its own decision without any outside interference.

It empowers senior judges to make these appointments. This is seen as a way to enclose the judiciary from political pressures and maintain its independence.

However, the process has faced criticism which has been given below:-

For lacking transparency and accountability.

The closed-door nature of the decision-making process.

Collegium has led to concerns about favoritism

Lack of diversity and potential compromise in the quality of appointments.

Striking a balance between maintaining judicial independence and ensuring accountability remains a perpetual challenge.

Who Heads the Collegium System?

The Collegium of SC is headed by the CJI (Chief Justice of India) and four senior-most judges of the supreme court.

The high court collegium system (CJI and 2 senior most judges) sends recommendation to the SC collegium.

Judges appointments for the higher judiciary are conducted through the collegium system. The name is decided by the college and the government has a role only after it.

Procedures for Judicial Appointments?

For CJI:

The President can get advice from Supreme Court and High Court Judges while appointing the CJI.

Basically, the senior or experienced judges should be the priority to the appointment of the CJI.

For SC Judges:

The CJI is responsible for making the appointment of other SC judges.

Before appointing, the chief justice of India gets consultation with collegium members and also gets advice from senior-most judges of the supreme court.

The opinions of the consultees must be documented in writing and should be included in the file which is going to the central government.

Finally, the Law Minister receives the recommendation from the Collegium and passes it to the Prime Minister for the President's approval.

For Chief Justice of High Courts:

High Court judges are recommended by a Collegium which comprises the CJI and two senior-most judges.

The proposal is initiated by the outgoing Chief Justice of the High Court in consultation with two senior-most colleagues.

At last, the recommendation is sent to the Chief Minister of that state or union territory, then the Governor sends the proposal to the Union Law Minister.

Implementation of Legal Aid Scheme

Visits under NALSA

Impact on the Legal System

The decisions made by judges have an extreme impact on the legal system which has been appointed through the Collegium system . The judges play a major role in interpreting laws, upholding the constitution, checking the validity of acts and ensuring justice. The Collegium has an objective to appoint judges who are experienced in law and have a deep understanding of societal needs.

News:

Recently, the media of the country spread the news that law minister “kiren rijuji” wants a government member in the Collegium System. However, the law minister called it "fake news”. According to him, judges do not recommend the best candidate for the position; they just suggest the hiring of those who are well-known.

Society's Role in the Legal System

The legal system works in the broader context of society which reflects its values, norms, and expectations. The Collegium system aims to maintain a balance between societal needs and the judicial process of appointments. Society demands a judiciary which takes responsibility for its evolving needs, and the Collegium system seeks to ensure that judges appointed will understand and interpret these societal expectations.