Friends, recently you must have read or heard about these two words Collegium and NJAC . Both these words are connected with the judiciary. They are two procedures/systems for the appointment of judges in various courts including the High Court and the Supreme Court. The Collegium system is in operation for more than the last two decades.
What is Collegium System and How Did it Evolve?
It is a system of appointment and transfer of judges that has evolved through judgments of the Supreme Court (SC) and not by an act of Parliament or by the provision of the Constitution.
Evolution of the system
- First Judges Case (1981)- It declared that the ‘primacy’ of the Chief Justice of India (CJI) recommendation on judicial appointments and transfers can be refused for cogent reasons. This ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
- Second Judges Case (1993)- SC introduced the Collegium system, holding that ‘consultation’ really meant ‘concurrence’. It added that it was not the CJI’s individual, but an institutional opinion formed in consultation with two senior judges in the SC.
- Third Judges Case- SC on the President’s reference (Article 143) expanded the Collegium to a five-member body, comprising of CJI and four of his senior-most colleagues.
Who Heads the Collegium System?
- The SC Collegium is headed by the CJI and comprises four other senior-most judges.
- An HC Collegium is led by the Chief Justice and four other senior judges of that court. Names recommended for appointment by an HC Collegium reach the government only after approval by the CJI and the SC Collegium.
- Judges of the higher judiciary are appointed only through the Collegium system and the government has a role only after names have been decided by the Collegium.
What are the Procedures for Judicial Appointments?
- For CJI- The President of India appoints CJI and the other SC judges. As far as the CJI is concerned, the outgoing CJI recommends his successor. In practice, it has been strictly by seniority ever since the controversy during emergency period of the Indira Gandhi regime.
- For SC Judges-For other judges in SC, the proposal is initiated by the CJI. The CJI consults the rest of the members of the Collegium, as well as the senior-most judge of the court hailing from the HC to which the recommended person belongs. The consultees must record their opinions in writing and it should form part of the file. The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
- For CJ of High Courts- He/she is appointed as per the policy of having CJ from outside the respective states. The Collegium takes the call on the elevation. HC judges are recommended by a Collegium comprising of CJI and two senior-most judges. The proposal however is initiated by the outgoing CJ of the HC concerned in consultation with two senior-most colleagues. The recommendation is sent to the Chief Minister, who advises Governor to send the proposal to the Union Law Minister.
What is Critical About the Collegium System?
- Opaqueness and lack of transparency.
- Scope for nepotism.
- Embroilment in public controversies.
- Overlooks several talented junior judges and advocates.
An attempt was made to reform the Appointment System
The Union government made an attempt in 2014 by introducing and passing in both houses of Parliament, the National Judicial Appointments Commission (NJAC).
I will write about the NJAC in my next blog.
Waiting for your views on this blog
Anil Malik
Mumbai, India
20th December 2022