Collegium System and Its Criticism

Collegium System and Its Criticism


The article ‘Collegium System and Its Criticism’ explains precisely the collegium system, its evolution, and case laws with criticism. The article, through criticism, tries to highlight that the judiciary’s independence guarantees judicial primacy but not judicial exclusivity. The Collegium system can be improved by making it more transparent, inclusive, and merit-based, ensuring that judges are appointed based on their ability and experience rather than any other considerations. This can help strengthen the independence of the judiciary and maintain public trust in the judicial system.

What is the Collegium System?

The Collegium System refers to appointing judges to the Supreme Court and High Courts of India, which involves the Chief Justice of India and a group of senior judges. The Collegium system was introduced in the 1990s to ensure that the judiciary had greater independence in appointing judges.

The Composition of the collegium differs depending on the level of the judiciary for which the appointment is being made. For appointments to the Supreme Court, the collegium consists of the Chief Justice of India and four senior-most judges of the Supreme Court. For appointments to High Courts, the collegium is made up of the Chief Justice of the concerned High Court and two senior-most judges of that court. However, the High Court collegium only marks the recommendation for appointment to the High Court. The final decision is taken by the collegium of the CJI and two senior-most Supreme Court judges.

However, the Collegium system has been the subject of debate and criticism over the years, with some arguing that it lacks transparency and accountability. Indian Government has attempted to reform the collegium system through the introduction of the National Judicial Appointments Commission (NJAC), but the Supreme Court struck down the NJAC Act in 2015 and reinstated the Collegium System as the sole method for the appointment of judges to the higher judiciary in India.

How Does the Collegium System Evolved?

After the recommendation of such a Collegium system should be binding on the President though he can say for reconsideration on certain grounds. The case of S.P. Gupta v. Union of India empowers the executive in the Judges’ appointment process. The key observation made in this case was that “Consultation” by the president from the CJI should not be constructed as “Concurrent” which meant that the president is not bound to follow the opinion of the CJI.

Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 – 9 Judges bench was created for the landmark case, the decision of the S.P Gupta case was reversed, and it was held that CJI should be given the primary role in the appointment process of the Judges. The power of appointing judges to the higher judiciary lies with the judiciary itself and not with the executive branch of the government. The court also established the Collegium system for judicial appointments.

Advocate-on-Record Association v. Union of India (1998) – In this case, the Supreme Court held that the Chief Justice of India should consult a collegium of judges before making recommendations for judicial appointments. The court also emphasized the importance of transparency in the appointment process. On the president’s references, the body of the collegium system was expanded to 5 members body for the Supreme Court Judges’ appointment. Which would consist of the 4 senior-most judges. In the appointment of the High Court Judges, the collegium system body would consist of the CJI and 2 Senior Judges.

The National Judicial Appointments Commission (NJAC) was a proposed constitutional body in India that would have been responsible for the appointment and transfer of judges to the higher judiciary. The National Judicial Appointments Commission (NJAC) was a proposed constitutional body in India that was intended to consist of the following six members:

  • Chief Justice of India (CJI)
  • Two senior-most judges of the Supreme Court
  • Union Minister of Law and Justice
  • Two eminent persons, nominated by a committee consisting of the Prime Minister, the CJI, and the Leader of the Opposition in the Lok Sabha (lower house of parliament), or the leader of the single largest opposition party in the Lok Sabha.

However, the Supreme Court of India struck down the NJAC Act in 2015, deeming it unconstitutional and violative of the principle of judicial independence.

Supreme Court Advocates-on-Record Association v. Union of India, (2015) AIR 2015 SC 5457: In this case, the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act, which aimed to replace the Collegium system with a new body consisting of both judges and executive representatives for the appointment of judges. The court reaffirmed the Collegium system as the primary method for the appointment of judges to the higher judiciary, stating that the NJAC Act would compromise the independence of the judiciary.

Campaign for Judicial Accountability and Reforms v. Union of India (2016)- In this case, the Supreme Court reiterated the need for transparency in the Collegium system and directed the government to draft a Memorandum of Procedure (MOP) in consultation with the Chief Justice of India for appointments to the higher judiciary. The court also directed the government to finalize the MOP expeditiously and give due consideration to the judiciary’s views while finalizing the MOP.

Criticisms of the Collegium System

  • Lack of transparency: The collegium system is often criticized for its lack of transparency in the appointment process. Critics argue that the system is opaque and non-accountable, leading to doubts about the fairness and objectivity of the selection process.
  • Limited representation: The collegium system is seen as an exclusive club of judges who decide on the appointment and transfer of other judges. This has led to concerns about a lack of diversity and representation in the judiciary, with certain communities and regions being underrepresented.
  • Absence of checks and balances: The collegium system operates without any external checks and balances, with the judiciary having complete control over the appointment process. This has led to fears that the system may be prone to favouritism and nepotism, and that there is no mechanism to hold the judiciary accountable for its decisions.
  • Inefficiency: The collegium system has also been criticized for its inefficiency in processing appointments and transfers, leading to vacancies in the judiciary and delays in the delivery of justice.
  • Lack of consultation: The collegium system does not involve any consultation with the executive branch of government, which is responsible for representing the people and ensuring accountability. Critics argue that this undermines the principle of separation of powers and may lead to a conflict of interest between the judiciary and the government.

References

[1] S.P. Gupta v. Union of India AIR 1982, SC 149.

[2] Advocate-on-Record Association v. Union of India, (1993) 4 SCC 441

[3] Advocate-on-Record Association v. Union of India, AIR 1999 SC 1

[4] Supreme Court Advocates-on-Record Association v. Union of India (Recusal Matter), (2016) 5 SCC 808

[5] Subhash Chandra Agrawal v. CPIO, 2017 SCC OnLine CIC 17623

Important Links

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