Updated: Nov 19
The recent news came that, the Union minister of Law and Justice criticized the Supreme Court Collegium system, saying that judges only recommend the appointment or elevation of those they know and are not always the fittest person for the job. Let’s evaluate the statement and understand the working of the collegium system. It is a true fact that the word Collegium system is nowhere seen in the Indian constitution and has come into force as per Judicial pronouncement. The origin of this system may be traced back to the recommendations by the Bar Council of India made at the national seminar of the lawyers at Ahmadabad.
Today let’s digress on this matter and see if this system is fair on its own or not.
WHAT IS THE COLLEGIUM SYSTEM
Let’s understand what the Collegium system is, it's an Indian Judicial Collegium System, which appoints judges to the country's constitutional courts from among its current judges, The Chief Justice of India (CJI) presides over a body known as the Collegium system, which consists of the Supreme Court's four most senior judges. The Collegium system decides on judge transfers and appointments to the higher court.
WHAT EXACTLY DOES THE CONSTITUTION MANDATE
Judges of the Supreme Court are appointed in accordance with Article 124. It states that the President should designate the person after consulting with any High Court and Supreme Court judges he or she deems essential. With the exception of his or her own appointment, the CJI must be consulted.
Judges for the High Court are appointed according to Article 217. It states that the CJI and the state governor should be consulted before the President appoints a judge. It is also advisable to consult the appropriate High Court's Chief Justice. There are two categories of recommendations the Collegium may make to the Supreme Court: When senior lawyers are directly appointed as Supreme Court justices, as well as when high court judges are promoted to the Supreme Court.
The Chief Justice of India and the two judges with the most seniority make up the whole Supreme Court Collegium, which only consists of three justices for high court appointments. The Collegium, which now consists of six members, comprises of five judges for Supreme Court nominations.
Similar to the Supreme Court, the high courts also have a Collegium, which is presided over by the chief justice of the high court and is comprised of the two most senior judges. Only the Supreme Court Collegium receives the high court Collegium's recommendations for judge nominations.
THE OTHER SYSTEMS INVOLVED AND WHEN?
The "Three Judges Cases," a collection of three rulings that are now referred to as the "Collegium System," served as the inspiration for the collegium system. The "First Judges Case" refers to the S. P. Gupta case (30 Dec 1981). It stated that "cogent reasons" could be given for rejecting the "primacy" of the CJI's recommendation to the President. For the following 12 years, judicial nominations were made with the executive taking precedence over the judiciary as a result of this paradigm change.
CRITICISM OF THE COLLEGIUM SYSTEM
In recent years there has been a lot of criticism over the appointment of judges for the apex court and high courts through the Collegium system. The Collegium procedure of appointing judges has been criticized by the Centre for being "not transparent." The government also claimed responsibility for the significant number of openings in the higher judiciary. The Centre has previously claimed that the Collegium system fosters favoritisms and prevents poor members of the upper castes, OBCs, and Dalits from rising to positions of the higher judiciary on the basis of merit. Rijiju recently claimed that judges appoint other judges more often than they make decisions. He claimed that many were unhappy with the system and criticized it for being nontransparent and unaccountable.
WHAT WAS SAID BY THE SC ON THIS MATTER
The SC has continued to assert that the Collegium is the most open institution and that the current structure should not be abandoned because of the claims of "some busy body. "U Lalit, a former Chief Justice of India, has previously claimed that the National Judicial Appointment Commission, which was introduced in 2014 and then ruled unconstitutional by the Supreme Court, should not be reinstated since the Collegium system is ideal and will remain in place.
Co-Authored with: Prof. Jharna Jagtiani