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DAILY NEWS ANALYSIS

  • 10 November, 2022

  • 5 Min Read

Collegium System

Collegium System

  • The Supreme Court Collegium system has recently come under fire from the Union Minister of Law and Justice for being opaque and without accountability.
  • The Indian Constitution's Articles 124(2) and 217 address the appointment of judges to the Supreme Court and High Courts, respectively.

How Did the Collegium System Develop?

Rather than being established by a law passed by Parliament or a clause in the Constitution, the Collegium system for the appointment and transfer of judges has developed as a result of Supreme Court decisions.

Changes to the System:

  • 1981's First Judges Case: It stated that "cogent reasons" may be given for rejecting the "primacy" of the CJI's (Chief Justice of India) recommendation on judicial appointments and transfers.
  • For the ensuing 12 years, the Executive would have priority over the Judiciary in making judicial nominations.
  • The SC established the Collegium system in the Second Judges Case (1993), ruling that "consultation" actually meant "concurrence."
  • It was further stated that this was not the CJI's personal opinion, but rather an institutional judgment developed after consultation with the SC's two most senior judges.
  • Third Judges Case (1998): The Collegium was increased to five members, with the Chief Justice of India and his four most senior colleagues, on the President's recommendation (Article 143) of the SC.

Who Is the System's Collegium Head?

  • The SC collegium, which consists of the four senior-most judges of the court, is led by the CJI (Chief Justice of India).
  • The current Chief Justice and the two other senior-most judges of the High Court serve as a collegium.
  • Only the collegium system is used to nominate judges of the higher judiciary, and the government only becomes involved once the collegium has chosen names.

What are the Judicial Appointments Processes?

For CJI:

  • The CJI and the other SC judges are chosen by the President of India.
  • The outgoing CJI proposes his successor as far as the CJI is concerned.
  • Since the supersession issue of the 1970s, seniority has been the sole determining factor in practice.

For SC Judges:

  • The suggestion is started by the CJI 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.

For Chief Justices of High Courts:

  • According to the policy of having Chief Justices from outside the individual States, the Chief Justice of the High Court is appointed.
  • The Collegium makes the decision on the promotion.
  • A Collegium made up of the CJI and the two most senior judges makes recommendations for High Court judges.
  • However, the suggestion was started by the departing Chief Justice of the relevant High Court after consulting with two of her most senior colleagues.
  • The Chief Minister receives the recommendation and recommends the Governor to forward it to the Union Law Minister.

What Problems Arise With the Collegium System?

Executive exclusion:

  • A system where a small number of judges secretly appoint the remaining judges resulted from the complete absence of the executive from the judicial selection process.
  • Additionally, they are not answerable to any administrative entity, which could result in the selection of the incorrect candidate while omitting the appropriate candidate.

Chances of Nepotism and Favoritism:

  • Because the collegium system does not stipulate any precise standards for vetting CJI candidates, it leaves a lot of room for nepotism and favoritism.
  • It results in the court system becoming less transparent, which is very detrimental to the maintenance of law and order in the nation.

In violation of the checks and balances principle:

  • In this system, the check-and-balance concept is broken. In India, three organs operate in part independently, but they keep each other in check and restrain any organ's overwhelming power.
  • But the collegium structure provides the judiciary enormous power, which leaves few opportunities for balances and raises the possibility of abuse.

Close-Door Mechanism:

  • This system lacks a formal secretariat, as critics have noted. It is said that a collegium meets behind closed doors and makes judgments in secret, with no public knowledge of these details.
  • Additionally, no formal minutes of collegium proceedings exist.

Unfair Representation:

  • The higher judiciary's makeup, where women are disproportionately underrepresented, is another source of concern.

What were the Appointment System Reform Efforts?

  • The court invalidated the attempt to replace it with a "National Judicial Appointments Commission" (via the 89th Amendment Act of 2014) in 2015 on the grounds that it endangered the independence of the judiciary.

Way Forward

  • 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 organization to institutionalize the procedure with sufficient safeguards to protect the judiciary's independence and guarantee judicial supremacy but not judicial exclusivity.
  • It should guarantee independence, show diversity, exhibit professionalism, and honesty, and reflect those values.

Source: The Indian Express


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