This article on ‘Collegium System for the Appointment of Judges: All you need to know‘ was written by Rosy Adhikary, an intern at Legal Upanishad.
Introduction
The Supreme Court is located at the summit of the pyramidal Indian judicial system. Following that are the High Courts of several States; the majority of States have their own High Courts, while some States have Common High Courts (e.g. Punjab and Haryana). Following that, district-level courts and so on are subordinate to it. The Supreme Court’s selection of judges. Kiren Rijiju, the law minister, criticised the long-standing system of selecting judges, claiming that “nowhere else in the world, aside from India, is there a procedure where judges pick their brother judges.”
Procedures for Judicial Appointments
India’s Chief Justice:
The CJI and the other Supreme Court judges are chosen by the Indian President. The departing CJI proposes his successor in terms of the CJI. Since the supersession issue of the 1970s, it has always been done purely by seniority in practise.
Judges of the Supreme Court:
The CJI makes the proposal for the SC’s other judges. The CJI contacts the other members of the Collegium as well as the senior-most judge of the court who is a member of the High Court where the suggested individual is a member. The consultees must submit their written comments, which should be included in the file. The recommendation is forwarded by the Collegium to the Law Minister, who then transmits it to the Prime Minister for the President’s guidance.
The Chief Justice of the High Courts:
According to the practise of appointing Chief Justices from outside the individual States, the High Court’s Chief Justice is chosen. The decision to elevate is made by the Collegium. A Collegium made up of the CJI and the two senior-most judges nominates candidates for the High Court. But the initiative for the idea comes from the departing Chief Justice of the relevant High Court, after consulting with her two seniorest colleagues. The proposal is forwarded to the Governor, who is advised to forward it to the Union Law Minister by the Chief Minister.
What is a Collegium System?
- Judges would be appointed without the involvement of the legislature or the executive.
- Instead of being established by a law passed by parliament or a clause in the constitution, the system for the appointment and transfer of judges has developed as a result of Supreme Court decisions.
- The names of the suggested candidates will also be sent by the national government for consultation.
- There is no set time restriction for the appointment process, thus it takes a long time. The government must approve the names if the Collegium sends them again with the same name.
- The Collegium System was severely criticised by the government and civil society for its lack of accountability and openness.
When was the Collegium adopted in India?
The Collegium system was established in 1993 as a result of the Second Judges Case, which ruled that “consultation” actually meant “concurrence.” It was further stated that the institutional position was developed after consultation with the two senior-most Supreme Court judges and was not the CJI’s personal opinion. In the Third Judges Case, 1998, the court made it clear that, in appointments to the Supreme Court, the collegium would consist of the Chief Justice and four senior-most colleagues. And, in the case of appointments to the high courts, the Chief Justice of India and her two most senior colleagues.
The collegium would also consult other senior judges of the SC who had previously held positions in the relevant HC when it came to HCs. The judgments are silent regarding whether these consultee-judges’ opinions are enforceable against the collegium. The 99th constitutional amendment was intended by the government to replace the collegium with the National Judicial Appointments Commission. The Supreme Court, however, invalidated NJAC. The NJAC law allowed politicians equal input in judicial appointments to constitutional courts, according to the court’s justification.
Who is the Collegium System’s head?
The Chief Justice of India (CJI) is in charge of the Collegium System of the Supreme Court, which is made up of the four judges who hold the highest positions on the court. The collegium of the High Court is composed of the incumbent Chief Justice and the two senior judges. In order to nominate judges for the higher judiciary, only the collegium system is used, and when the collegium has selected names, the government gets involved.
The Challenges to the collegium system?
Experts identify a number of structural flaws, including:
- Without a separate secretariat or intelligence-gathering organisation tasked with collecting and analysing potential nominees’ personal and professional backgrounds, it is difficult to appoint and remove judges on an administrative level.
- A secretive event without a proper, open procedure;
- The collegium’s restriction of the High Court’s senior-most judges as its first choice for Supreme Court nominations disregarded a number of excellent junior judges and attorneys.
In what ways do other nations appoint SC judges?
In the USA, appointments typically occur less frequently because there are only one or two vacancies in the nine-member Supreme Court during a President’s term. The United States’ constitutional structure has prevented Congress from interfering with the Court’s independence. According to the American Constitution, the Senate’s advice and consent are required for the president to designate judges and justices to the Supreme Court. These judges are chosen for life, and the only way to get them removed is by impeachment by Congress. Additionally, neither the Supreme Court nor the subordinate federal courts’ judicial appointment requirements are outlined in any statute.
UK – The judicial appointment process in the UK is overseen by a separate body known as the Judicial Appointments Commission (JAC). It has fifteen members. 12 of these were chosen through an open competition, while 3 are judges.
South Africa– The President of South Africa is advised to nominate judges by the Judicial Services Commission, which has 23 members.
Conclusion
There is no time limit for the process of filling vacancies because it involves both the executive and the judicial branches and is ongoing. But now is the moment to consider creating a long-lasting, independent organisation to institutionalise the procedure with sufficient safeguards to protect the judiciary’s independence and guarantee judicial supremacy but not judicial exclusivity.
References
- Supreme Court Collegium System and National Judicial Appointments Commission (NJAC), BYJU’S exam prep, available at https://byjus.com/free-ias-prep/collegium-system/
- Drishtiias, Collegium System for the Appointment of Judges available at https://www.drishtiias.com/daily-updates/daily-news-analysis/collegium-system-for-the-appointment-of-judges-2
- Deccan Herald, Explained | What is the Collegium system and how does it work? Available at https://www.deccanherald.com/national/explained-what-is-the-collegium-system-and-how-does-it-work-1168118.html