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A CRITICAL ANALYSIS OF THE COLLEGIUM SYSTEM IN INDIA: THE NEED OF THE HOUR
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A CRITICAL ANALYSIS OF
THE COLLEGIUM SYSTEM IN INDIA: THE NEED OF THE HOUR
The
judges should be unbound from the influence of political and non-political
bodies, either directly or indirectly. Therefore, the nomination of judges is
an essential aspect of regulating justice. The word Collegium is not mentioned
anywhere in the Constitution. Still, the case Supreme Court Advocates-On-Record
Association Vs. Union of India, which is prominently known as the "Three
Judges Case," introduced the notion of the collegium system. An advisory committee of the Chief Justice of India and four senior-most
Supreme Court judges determine on nominations and promotion of judicial
officers to the High Courts and the Supreme Courts and transferring of judges
to the High Courts and the Federal court under this legal structure. Article
124 of the Indian Constitution states that the President should appoint the
Judges with the assistance of the Chief Justice of India and the senior Judges
of the Supreme Court. Still, there are no constitutional provisions regarding
the appointment of judges under this system. Currently, the Collegium is
following no procedures in letting out its responsibilities and tasks. In this
paper, the goal of this study is to examine and
scrutinize how practical and effective the current collegiums system for
nomination of judges is at sustaining independence and impartiality and public
support and belief in the court and an analysis of the alternative
method of appointing the judges in the 99th Constitution Amendment Act that
involved the National Judicial Appointments Commission. Lastly, an
understanding of the severe and unusual problems of the collegium system is
very much needed, along with the need for the reform of the system.
Keywords: Chief Justice of India, Collegium System, Indian
Constitution, National Judicial Appointments Commission, Supreme Court.
RESEARCH PROBLEM:
1.
Whether the
Collegium System established in conformity with the provisions of the Indian
Constitution?
2.
Is it necessary to alter the Collegium System in order to increase
certainty and compliance?
INTRODUCTION:
According to the democratic way, all
three pillars of representative democracy are fundamental. However, proper
justice is seen as the most crucial. Not only should justice be carried out,
but it should also be perceived to be carried out. In conformity with the
doctrines of the sovereign state and Legislature, the Indian Constitution
incorporated many provisions to safeguard judicial independence. In
India, the procedure of judicial appointments also assures judicial sovereignty
and independence. On January 28, 1950, India's Supreme Court was created. It
succeeded the Supreme Court of India, founded under the Government of
India Act, of 1935.[1] The "Collegium System" refers to the process of
appointing and transferring Supreme Court/High Court judges."[2] The Collegium system, wherein the Chief Justice of India
and the Supreme Court of India make recommendations for the nomination and
transfer of justices.
The Federal Government receives
advice and referrals from the Collegium for legal professionals or judicial.
Accordingly, the State Authority presents the Collegium with most of its
preferred choices. The Federal Government checked and investigated the terms,
providing the document to Collegium. The Collegium reviews the Federal
Government's selections or ideas before submitting the documentation to the
parliament for review and confirmation. The authorities should authorize these
identities if the Collegium reverted back to that identity. However, there is
no time limit for responding. This is why appointing judges takes such a long
time.
The
Constitution of India does not explicitly state a condition. It says that
the President should designate Supreme Court judges in discussion with Chief
Justice as well as additional Supreme Court justices. and the Supreme Court
states that "the President may deem it necessary." It was unclear in
this provision what ideas among the
people involved should be given priority. The Supreme Court has considered this
important question in several cases. The Legislature has acted on the 14th Law
Commission's guidelines, which criticized the practice of assigning senior
magistrates as Chief Justice of the Supreme Court, arguing that perhaps the
Chief Justice ought to be a proficient and experienced judge, as well as a
credible administrator, and as such the administration succession must not be
governed by age.[3]
OVERVIEW OF THE COLLEGIUM SYSTEM:
The
controversy over the appointment of judges begins with the case of J. Zafar
Imam in 1968 when a vacancy arose in the office of SC Chief Justice, the then
chief judge J. Zafar Imam was not appointed as the Chief Justice of SC because
of his physical and mental weakness and in 1973, Justice A.N. Ray, who was
fourth in a row, was appointed Chief Justice of India. The government has used
the recommendation of the 14th Law Commission which criticized the practice of
appointing senior judges as Chief Justice of the Supreme Court on the grounds
that the Chief Justice should not only be a competent and knowledgeable judge
but also a competent administrator[4], so office sequence should
not be controlled by age. The same story was repeated in 1976 when the
Government appointed Justice Beg as Chief Justice in the absence of Judge
Khanna, who was older than him at the time. This time the main reason for this
appointment as given by Justice Khanna in his autobiography was his descending
opinion in the case of Habeas Corpus. He also said in his nightly history that
before the night he issued his decision, he would never be appointed as Chief
Justice. After the legal retirement of Beg, the Chief Justice, Judge
Chandrachud was appointed Chief Justice. Since then, the law of elders has been
followed in the case of the appointment of the Chief Justice of India.
In
1977, in the case of Union of India vs. Sankalchand Seth, was related to the
transfer of a judge from one Supreme Court to another.[5]
Under Article 222, the Supreme Court ruled that the President has the right to
differ from the advice given by the overseers.[6]
The Constitution of India does not explicitly state a condition as it simply
states that the President must appoint judges of the Supreme Court in
consultation with the Chief Justice and other judges of the "Supreme
Court" and the Supreme Court states that "the President may deem it
necessary". It was unclear in this provision what ideas among the people
involved should be given priority. This important question has been considered
by the Supreme Court in several cases after the Sankalchand case.[7]
HOW DOES COLLEGIUM SYSTEM WORK?
The collegium submits recommendations
for the names of lawyers or judges to the Central Government. Similarly, the
Central Government is also submitting some of its proposed names to the
Collegium. The Central Government checks and investigates the names and
distributes the file to Collegium. The Collegium considers the names or
proposals made by the Central Government and submits the file to the government
for final approval. If the Collegium reverts to that name and the government
should approve those names. But the time limit is not set for responding. This
is why the appointment of judges takes so long. It is important to note here
that the data released on October 1, 2020, indicates that the Supreme Court has
the powers allowed by 34 judges, of which there are currently four vacancies.[8] Making
judicial appointments to the Supreme Court requires compliance with three
constitutional prerequisites:
1.
First,
candidates who are eligible for advancement to the position of President of
India must be recommended by the "Collegium" of the Supreme Court,
which is presided over by the Chief Justice of India. In reality, prior to
suggesting such names, the Supreme Court Collegium discusses the High Court
Collegiums, which are made up of the three senior-most Judges. The Chief
Justice of India and the four senior-most serving Supreme Court judges
make up this Collegium. If the President confirms the replacement CJI's
appointment and the outgoing CJI later calls for a Collegium meeting before
retiring, the replacement CJI (also known as the CJI Designate) must also be
included.
2.
In
order to authorize the nomination of the candidates suggested by the Supreme
Court Collegium, the President must secondly offer their approval, seal the
notification of appointment, and issue it.
3.
Thirdly,
the President may, in a handful of instances, refer suggestions to the
Collegium for reconsideration while providing persuasive arguments against the
nominee. The President, subsequently, must abide by the Collegium's
decision-making and provide respect to the recommendations when both the CJI
and the Collegium unanimously reiterate their support for the proposed
candidate's appointment.
The Supreme Court constitutionally
interpreted the aforementioned conditions into Article 124 in order to
safeguard the interconnected and fundamental constitutional values of the
"rule of law," "separation of powers," and
"independence of the judiciary."
According to the Constitution, presided over by a three-judge court
(1982, 1993, 1998), a judge by the President
appoints the candidate based on the advice of the council/college, which
includes the Chief Justice of India's authorized entity, the four
constitutional court justices, and the top court jurist from the nomination. The
following
are three cases:
1.
S.
P. Gupta vs. Union of India - 1981 (also known as Judge's Transfer case)[9]
2.
Supreme
Court Advocates-on Record Association Vs. Union of India - 1993[10]
3.
In
re Special Reference 1 of 1998.[11]
FIRST JUDGES CASE:
In
S P Gupta Vs. Union of India,
1981, the Supreme Court, by a majority decision, held that the concept of the supremacy of the Chief
Justice of India could not be found in the Constitution.[12]
It said that any legislative power alluded to within Article 217 might make an
approach to the Federal Court for nomination, not only the Chief Justice of the
Federal Court.[13]
The Judicial Bench further determined that the phrase
"discussion" employed in Articles 124 and 217 did not indicate
"concurring opinion," implying that, while the President might confer
on these activities, his choice must not be unequivocal. When it came to
Supreme Court appointments, the ruling preserved the political balance in
favor of the Government.
SECOND JUDGES CASE:
The Apex Court's Division Bench overruled the
judgment in the suit of S P Gupta in Advocates-on-Record Association Vs. Union
of India in 1993.[14]
Also, it established the' Collegium System framework for the selection and
relocation of jurists to the tribunals. A majority authorized the CJI in
aspects of nomination and financial transaction, thereby deliberating that the
word "consultation" will not minimize the CJI's original position in
judicial appointments, asserting that perhaps the apex court should indeed
perform "to ensure the rights and supervise the judicial
independence." Even though this is a judiciary issue, the CJI's role is paramount.
The administration cannot have an ultimate say on the subject. The court held
whether the CJI must provide suggestions after consulting with two of his most
experienced jurists, and the officials must approve those specific
proposals under the collegium system. However, the Executive
and Legislature can ask the Collegium to evaluate the subject as a
challenge to the chosen nominee, and the Executive will bind the selection if
the authority keeps repeating the suggestion in review.
THIRD JUDGES CASE:
President K R Narayanan filed a Presidency Order in the Constitutional
Court in 1998, clarifying the definition of the phrase "consultation"
as defined by Article 143 of the Constitution[15]
(advisory authority).[16]
The question was whether "consultation" required consultation with
multiple judges in formulating the CJI vision or whether a single CJI concept
itself could be a "consultation."[17]
In response, the Supreme
Court set out nine guidelines for the operation of the Chamber for the
appointment and transfer of these have become the current standard of the
Collegium and have since become
prevalent. This view states that recommendations should be made by the CJI and
its four most senior colleagues rather than two.[18]
It also ruled that Supreme Court judges should be consulted by the High
Court, from which the nominee is named. Also, it was stated that the CJI must
not submit suggestions to the administration if two judges disagree. The
Collegium has been providing suggestions for judicial appointments and transfers
ever since then.
NATIONAL JUDICIAL
APPOINTMENT COMMISSION ACT, 2014 - THE FOURTH JUDGES CASE:
The National Judicial Appointment
Commission (NJAC) was established by a statute enacted by Parliament in
2015 to supersede the collegium system.[19]
This was dismissed as it was considered unconstitutional by the Supreme Court
in the case of a fourth judge as the new system would undermine the
independence of the judiciary.[20]
The National Judicial Appointments Commission (NJAC) is a recommended
legislative authority to substitute the present Collegium system of judiciary
nomination. The Constitutional amendments created the NJAC [Constitution
(Ninety-Nine Amendment Act), 2014].[21]
The Apex Court, to the surprise of the legislative branch, invalidated the 99th
constitutional amendment[22] and
the NJAC Act as constitutionally questionable and invalid on October 16, 2015,
in the fourth Judges Case Supreme Court Advocates-on-Record-Association and
Ors. Vs. Union of India (UOI)[23]
is trying to restore the collegium system only for judicial appointments to
federal courts.
The Constitutional Amendment and the
National Judicial Appointments Commission (NJAC) Act were enacted to substitute
the collegium system for appointing judiciary to the Superior Courts,
which developed following the second judge's case.[24]
"Judicial Appointments to the Supreme Court, judges and CJ of the
High Court, and the relocation of judges and CJ of the High Courts which
constituted preceding to the change," the court has ruled. The court
examined the bar association for suggestions on enhancing the collegium
system's functioning.
APPOINTMENT PROCEDURE IN
THE
COLLEGIUM SYSTEM:
India's judicial system plays a
crucial role in maintaining the independence of the judiciary. The Supreme
Court is the highest court of justice. After that, there are High Courts and
District Courts in all provinces or every state. Then there are the People's
Courts known as Lok Adalats. The President appoints the Supreme Court and High
Court judges under Articles 124 (2) and 217 of the Indian Constitution. The
President needs to hold consultations with those judges in the Supreme Court
and the High Court as far as possible.
According to Article 124(2) of the
Indian Constitution,[25]
"Almost any Judge of the Federal Courts will therefore be selected by the
President by authorization under his side and wrap upon discussions with all
this of the Supreme court judges and the High Courts in the Jurisdictions as
the Head of state could consider essential for the particular reason, and must
also stay in power unless he reaches the age of sixty-five years: Provided,
however, that when a Judge apart from the Chief Justice is assigned, the Chief
Justice of India will always be taken into account:
·
A
judicial may quit their position by having written to the President from their
hand;
·
A
judicial could be dismissed of their position in the ways indicated under
clause (4).
When a judicial except for the Chief
Justice of India is appointed, the Chief Justice of India is often reviewed
timely." Article 217 of the Indian Constitution[26]
states: " Almost any Judge of a High Court will henceforth be selected by
the Government by authorization under his side and wrap after discussions with
the Chief Justice of India, the Governor of the State, and, in the particular
instance of Judicial Appointments other than the Chief Justice, the Chief
Justice of the High Court, and will stay in power unless he reaches the age of
sixty-two years in the particular instance of an additional or acting Judge, as
stipulated in Article 224, and every other case unless he reaches the age of
sixty-two years provided that
·
A
Judge might also step down from his workplace by having written to the
President under his hand;
·
A
Judge could be taken down from his workplace by the Head of state in the
provisions laid down in clause (4) of Article 124 for the discharge of a
Supreme Court Justice;
·
The
office of a Judge must also be cleared by his appointment by the President to
the Supreme Court or through his relocation by the Head of state to some other
High Court only within the territorial jurisdiction of India.[27]
CRITICISMS OF THE
COLLEGIUM SYSTEM:
The fundamental goal of the Collegium
was to safeguard the independence of the judiciary by keeping the Executive and
Legislature out of the process of appointing justices. It was advised to
absolutely avoid using the infamous term "Sarkari Judges." The
Collegium was established with the best of objectives, but ironically, it fell short
of the outcomes its architects were striving upon. In the roughly three decades
after the Collegium was founded, there have been certain occurrences that may
indicate that the method is not the best one for choosing judges. There have
been situations where retired judges have appeared in public forums and claimed
that the Collegium is not operating in accordance with its founding principles.
The collegium system need not be considered exempt from the precautions and
requirements that apply to India's cornerstones of democratic values in terms
of transparency, morality, and diversity participation.[28]
"The most significant critique of the collegium system is the uncertainty
about the judicial appointments, especially the grounds depending on which the
justices make their decisions."[29]
The collegium system will lack the validity and reliability to be recognized by
all entities in the judicial framework without the need for a fair method for
appointing judges. Transparency would not be maintained simply by claiming that
the Collegium's members would behave transparently. The lack of clarity and the
lack of established parameters have several alarming consequences.
·
Unlawful
and authoritarian: The term "collegium" appeared nowhere else in the
legislative framework and was coined by the court to preserve control over the
selection of judges.
·
Anti-democratic:
federal judges have not been chosen by the public and are therefore not
answerable to them or others; hence collegium system is undemocratic.
·
Non-transparency
and opaqueness: There is no formal and transparent mechanism and no published
usage conditions, limited posting of the consultation process, and no
application procedures for judges is opacity in collegium systems.
·
Encourages
favoritism: Children and relatives of prior justices or prominent professionals
are frequently chosen for judicial positions. As a result, it promotes
incompetence in the courts by rejecting skilled individuals.
·
Ineffective:
The Collegium seems to be unable to limit an increase in the number of judicial
appointments and lawsuits. Upon the court struck down the NJAC Act, the ruling
did nothing else to alter it or add provisions to something that might have
restored it constitutionally lawful.
SUGGESTIONS TO REFORM THE
COLLEGIUM SYSTEM IN INDIA:
The appointment of Judges is a crucial process in a democratic country
like India and should be done very
carefully and with caution. Executive management has come to an end, and the Collegium is the only way left after the
Fourth Judge case. But now, the Collegium is also subject to many allegations,
and people continue to raise questions about the collegium system's performance. The Collegium system is
accused of being secretive and unable to respond to and be charged with
corruption.[30]
·
All
Collegium meetings should be recorded with the good audio-quality video.
Collegium decisions must reflect good processes and good practices.
·
The
Central Government supports this change to include the Collegium, the existing
High Court judges, senior lawyers, the Attorney General of India, and the
Advocate General (for the appointment of HC), thereby creating a democratic and
transparent Collegium system.
·
All
nominations and elevations must be made independently, reducing the size of the
preferences, electoral positions, political appointments, nepotism, favoritism,
etc.
·
Any
collegium judge who shows a tendency to overemphasize or temporarily rotate due
process should be barred from further participation in Collegium.
·
The
Collegium should provide applicable laws, rules, and regulations that may be
amended to obtain complaints against individual judges, include appropriate
procedures to prevent baseless complaints against judges by interested parties,
and conduct an independent investigation into complaints if available.
CONCLUSION:
While disregarding the constitutional amendments and the NJAC Act, the
majority on the Constitutional Bench expressed grave concern about the
shortcomings of the Collegium system in appointing the judges and, therefore,
views and opinions on much-needed malaise and
transparency in the implementation of the collegiums. In the case of the
fourth judge, a prayer for reconsideration
of the second case of the Judges - and the third judge in the hands of the
constitutional bench was rejected. The Constitution establishes a consultation
and participation process among constitutional functions to nominate or appoint
the best person to judge HC and SC.
India
is the only country where judges actually have the liberty to use their own
names in the name of judicial independence and the fundamental framework of the
Indian Constitution. The founders of
our Constitution have decided not to give the judges final power. Since 1993,
the Collegium has enjoyed the power
to appoint judges in both the Supreme Court and the High Court. Until then, the
Executive Council had enjoyed the right to do so. The Supreme Court had dismissed the NJAC for doing so somehow
and violating the fundamental principles of India's Constitution and democracy.
Strictly speaking, the team of the top five judges who make up the Collegium is the final decision as
they do not take any advice from the Executive as elected by the people of
India. In the case of the fourth judge, the Supreme Court has asked for suggestions from Bar Council members
and other stakeholders. Changing the Collegium system to increase the number of
judges is also an hour requirement. The Central
Government supports this change to include the Collegium, the current judges of
the Supreme Court, the senior lawyers, the Advocate General, and the
Attorney-General of India, thus forming
a democratic and transparent Collegium system. As a result, India must
reestablish the federal court's legitimacy by following a system of judicial
appointments that is transparent and accountable. The caliber of jurists could
also be increased and alter the Collegium system.
[1]
The Government of India Act,1935.
[2] Hemanth Singh, What is the
collegium system and how it works, available at https://www.jagranjosh.com/general- knowledge/what-is-the-collegium-system-and-how-it-works-1525257473-1.
[5]
Union of India vs. Sankalchand Himatlal Sheth and Anr. (1977) 4 SCC 193
[6]
Article 222. The Constitution of India
[7]
Supra note 9
[10]
Supreme Court Advocates-On-Record Association V. Union of India (1993) 4 SCC
441.
[11] Re:
Special Reference 1 of 1998 (1998) 7 SCC 739.
[12]
Supra note 3.
[13]
1990 SCR Supl. (2) 433 (Subhash Sharma vs. Union of India).
[14]
Supra note 4.
[15]
Article 143, The Constitution of India,1950.
[16]
In Re: Special Reference No. 1 of 1998, MANU/SC/1146/1998: (1998) 7 SCC 739.
[17] Available at https://thelogicalindian.com/story-feed/awareness/collegium/.
[19]
National Judicial Appointment Commission Act, 2014.
[20]
Krishnadas Rajgopal, SC Bench strikes down NJAC Act as ‘unconstitutional and
void’, available at https://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-system/article7769266.ece.
[22] Id.
[23]
Supra note 14.
[24]
Supra note 13.
[25]
Article 124(2), The Constitution of India, 1950.
[26]
Article 217, The Constitution of India,1950.
[27]
Article 224, The Constitution of India,1950.
[28]
Ayush Pratap Singh, "Appointment of Judges in Supreme Court in India: A
Review of Collegium System" Published
in International Journal of Trend in Scientific Research and Development
(ijtsrd), ISSN: 2456-6470, Volume-2
| Issue-5, August 2018, pp.946-950, URL: https://www.ijtsrd.com/papers/ijtsrd17004.pdf.
[29]
Ibid.
[30]
Available at https://www.thehindu.com/specials/in-depth/njac-vs-collegium-the-debate- decoded/article10050997.ece.
Article Information
A CRITICAL ANALYSIS OF THE COLLEGIUM SYSTEM IN INDIA: THE NEED OF THE HOUR
Authors: TARUN S LUNAWAT
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/24
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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