Collegium System of Appointment: An Overview

Collegium System of Appointment: An Overview

The collegium system of appointment is a method of selecting and transferring judges of the Supreme Court and the High Courts in India. It is not based on any law or constitutional provision but on the judgments of the Supreme Court itself. The system is there since 1993 when the Supreme Court asserted its primacy over the executive in judicial appointments.

How does the collegium system work?

The collegium system involves two collegiums: one for the Supreme Court and one for each High Court. The Supreme Court collegium consists of the Chief Justice of India (CJI) and four other senior-most judges of the Supreme Court. The High Court collegium is headed by its Chief Justice and four other senior-most judges of that court.

The collegiums are responsible for recommending names of judges for appointment and transfer to the President of India, who is bound by their decisions. The process of appointment is as follows:

-For appointment of CJI: The outgoing CJI recommends his successor, usually the senior-most judge of the Supreme Court.

- For the appointment of other Supreme Court judges: The CJI initiates the proposal and consults the other four collegium members and the senior-most judge from the High Court of the candidate. The opinions of the consultees are recorded in writing and sent to the Law Minister, who forwards it to the Prime Minister to advise the President.

- For the appointment of High Court judges: The proposal is initiated by the Chief Justice of the concerned High Court and sent to the CJI, who consults the other four collegium members and the two senior-most judges from that High Court. The proposal is then forwarded to the Law Minister, who sends it to the Prime Minister to advise the President.

- For transfer of High Court judges: The proposal is initiated by the CJI after consulting the other four collegium members. The views of the Chief Justice and the judge to be transferred are also taken into consideration. The proposal is then sent to the Law Minister, who forwards it to the Prime Minister to advise the President.

The government can seek clarifications or raise objections to the collegium's recommendations, but if they are reiterated by the collegium, then the government has to accept them. The government also conducts an inquiry by the Intelligence Bureau on the suitability of the candidates before their appointment.

What are the advantages and disadvantages of the collegium system?

The supporters of the collegium system argue that it ensures judicial independence and prevents political interference in judicial appointments. They claim that it preserves the separation of powers and checks and balances among different organs of the state. They also contend that it promotes meritocracy and seniority among judges.

The critics of the collegium system point out two negatives, it lacks transparency and accountability, as there are no clear criteria or guidelines for selecting judges. They also allege that it leads to nepotism, favouritism and arbitrariness in judicial appointments. They also question its constitutional validity, as it is not derived from any express provision or amendment. They suggest that there should be a more participatory and representative mechanism for judicial appointment, involving other stakeholders such as Parliament, the executive, the bar and civil society.

What are some alternatives to the collegium system?

In 2014, Parliament passed the National Judicial Appointments Commission (NJAC) Act, which sought to replace the collegium system with a six-member commission comprising:

- The CJI as the chairperson

- Two other senior-most judges of the Supreme Court

- The Law Minister

- Two eminent persons nominated by a committee consisting of the Prime Minister, the CJI and the Leader of the Opposition in Lok Sabha

The NJAC was supposed to recommend names for appointment and transfer of judges to the President by a majority vote, with any two members having veto power. However, in 2015, a five-judge bench of the Supreme Court struck down the NJAC Act as unconstitutional, holding that it violated judicial independence and primacy.

Some other alternatives that have been proposed by various experts and committees include:

- A Judicial Appointments Commission (JAC) with a balanced composition of judicial and non-judicial members, with adequate representation of women, minorities and weaker sections.

- A National Judicial Service (NJS) with an all-India examination for recruitment of judges at different levels, with due regard to merit, experience and diversity.

- A Judicial Performance Evaluation (JPE) system with periodic assessment of judges based on objective criteria such as quality, timeliness and integrity.

- A Judicial Accountability (JA) mechanism with effective measures for dealing with complaints against judges and imposing disciplinary actions or removal for misconduct or incapacity.

Conclusion

The collegium system of appointment is a unique feature of the Indian judiciary that has evolved through judicial pronouncements. It has its merits and demerits and has been a subject of debate and controversy for a long time. There is a need for a comprehensive and consensual reform of the system to make it more transparent, accountable and inclusive while preserving judicial independence and excellence.

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