Collegium of Supreme Court judges

Topics Covered:

1. Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.
2. Separation of powers between various organs dispute redressal mechanisms and institutions.

 

Collegium of Supreme Court judges

 

What to study?

For Prelims: Collegium system for the appointment of judges, selection and removal of SC judges, overview of NJAC.

For Mains: Issues with Collegium system and why was NJAC struck down? Need for urgent reforms.

 

Context: The recent controversy over the transfer of the Chief Justice of the Madras High Court, Justice Vijaya Kamlesh Tahilramani, to the Meghalaya High Court has once again brought to the fore a long-standing debate on the functioning of the ‘Collegium’ of judges.

 

What is the Collegium system?

The Collegium of judges does not figure in the Constitution. It is the Supreme Court’s invention.

Constitution says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.

Therefore, Collegium is a system under which judges are appointed by an institution comprising judges.

Collegium also recommends the transfer of Chief Justices and other judges. 

 

How did this come into being?

1. ‘First Judges Case’ (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective. However, the CJI’s opinion should have primacy.
2. Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court. 
3. Third Judges Case (1998): SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

 

Procedure followed by the Collegium:

1. The President of India appoints the CJI and the other SC judges.
2. For other judges of the top court, the proposal is initiated by the CJI.
3. The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
4. The consultees must record their opinions in writing and it should form part of the file.
5. The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
6. The Chief Justice of High Courts is appointed as per the policy of having Chief Justices from outside the respective States.
7. The Collegium takes the call on the elevation.

 

Appointment of CJI for High Courts:

1. High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
2. The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
3. The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

 

Common criticism made against the Collegium system:

1. Opaqueness and a lack of transparency.
2. Scope for nepotism.
3. Embroilment in public controversies.
4. Overlooks several talented junior judges and advocates.

 

Attempts to reform:

The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

 

Reforms needed:

1. A transparent and participatory procedure, preferably by an independent broad-based constitutional body guaranteeing judicial primacy but not judicial exclusivity.
2. It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
3. Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appointment in order of preference and other valid criteri

Sources: the Hindu.