What is a Collegium System and How Did It Evolve?
The Collegium System of Supreme Court is one of the very important topics in understanding the appointment of the Supreme Court judges and the judicial system. It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
Who heads the Collegium System?
The Collegium System of Supreme Court is headed by the CJI (Chief Justice of India) and comprises four other senior most judges of the court. A High Court collegium is led by the incumbent Chief Justice and two other senior most judges of that court. 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.
Procedures for Judicial Appointments?
For Chief Justice of India:
- The President of India appoints the 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 supersession controversy of the 1970s.
For Supreme Court Judges:
- For other judges of the SC, the proposal is initiated by the CJI. 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. 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 Chief Justice of High Courts:
- The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation. High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges. The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues. The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
Appointment of CJI 1950-1973
- Until 1973, there existed a consensus between the Government of the day and the Chief Justice of India.
- A convention was formed where the senior-most judge of the Supreme Court was to be appointed as the Chief Justice of India.
- In 1973, A.N.Ray was appointed as the Chief Justice of India. This violated the convention formed earlier since Justice A.N.Ray superseded three other Supreme Court judges senior to him.
- Again in 1977, another chief justice was appointed who superseded his seniors. This resulted in a clash between the Executive and the Judiciary.
Timeline of the Evolution of the System:
1. First Judges Case, 1981:
It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.” The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
2. Second judges case, 1993
Another petition was filed in 1993 by the Supreme Court Advocates on Record Association (SCARA). In this case, the Supreme court overruled its earlier verdict and changed the meaning of consultation to concurrence. Thus binding the President of India with the consultations of the Chief justice of India. This resulted in the birth of the Collegium System.
3. Third Judges Case, 1998
In the year 1998, the presidential reference to the Supreme court was issued questioning the meaning of the word consultation in articles 124, 217, and 222 of the Constitution. The chief justice won’t be the only one as a part of the consultation process. Consultation would include a collegium of 4 senior-most judges of the Supreme court. Even if 2 of the judges are against the opinion, the CJI will not recommend it to the government.
Why National Judicial Appointment Commission Act came into face?
The Collegium System faced a lot of criticism not only from the government but also from civil society due to its Lack of Transparency and Accountability. This led to the 99th Constitutional Amendment Act, 2014 the National Judicial Commission Act (NJAC) to replace the collegium system for the appointment of judges.
National Judicial Appointment Commission Act, 2014
The 1993 judgment was the basis on which a five-judge Constitution Bench declared the National Judicial Appointments Commission Act (NJAC) and the Constitutional (Ninety-Nine Amendment) Act, 2014 unconstitutional in October 2015. NJAC too would recommend names for the Appointment of Supreme Court Judge and Appointment and Transfer of High Court Judge
Composition of NJAC
- The Chief Justice of India
- 2 senior-most judges of the Supreme Court
- The Law Minister of India
- 2 eminent members that are chosen by the Selection Committee