Debate over the collegium system: How are SC and HC judges appointed?

Union Minister for Law and Justice Kiren Rijiju on Saturday (September 17) said the collegium system of appointments to the higher judiciary needs to be reconsidered in view of the concerns about the process.

“There is a need to think about the collegium system so that appointments in higher judiciary can be accelerated,” the Minister said at the inauguration of a conference in Rajasthan, PTI reported. He later told reporters, “The system which is in place is causing trouble and everyone knows it. Further discussion will be held about what and how it has to be done. I put my views in front of everyone where judges, law officers and invitees were there,” the report said.

Rijiju’s statements reopen a longstanding debate over the process of appointment of judges to the Supreme Court and High Courts of India. An attempt by the government to bring a law that would give the executive a strong say in the appointments was struck down by the Supreme Court several years ago. Thereafter, in 2019, a nine-judge Bench of the court dismissed a plea for a review of its 1993 verdict in the so-called ‘Second Judges Case’, which is widely understood to be instrumental in establishing the existing “collegium system” of appointing judges in the higher judiciary. (See below)

How are judges appointed, how did the collegium system come to be, and why has it been criticised?

First, what is the collegium system of appointment of judges?

It is the way by which judges of the Supreme Court and High Courts are appointed and transferred. The collegium system is not rooted in the Constitution or a specific law promulgated by Parliament; it has evolved through judgments of the Supreme Court.

The Supreme Court collegium is a five-member body, which is headed by the incumbent Chief Justice of India (CJI) and comprises the four other seniormost judges of the court at that time. A High Court collegium is led by the incumbent Chief Justice and four other seniormost judges of that court. By its very nature, the composition of the collegium keeps changing, and its members serve only for the time they occupy their positions of seniority on the Bench before they retire.

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. Names that are recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.

The role of the government in this entire process is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court. The government can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Sometimes the government delays making the appointments, especially in cases where the government is perceived to be unhappy with one or more judges recommended for appointment by the collegium. Supreme Court judges have sometimes expressed anguish over such delays.

What does the Constitution say on the appointment of judges in the higher judiciary?

Articles 124(2) and 217 of the Constitution deal with the appointment of judges to the Supreme Court and High Courts. The appointments are made by the President, who is required to hold consultations with “such of the judges of the Supreme Court and of the High Courts” as he may think is needed. But the Constitution does not lay down any process for making these appointments.

Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”

Article 217 says: “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.”

How did the collegium system of appointments evolve?

The collegium system evolved out of a series of judgments of the Supreme Court that are called the “Judges Cases”. The collegium came into being through the interpretations of the relevant provisions of the Constitution that the Supreme Court made in these Judges Cases.

FIRST JUDGES CASE: In ‘SP Gupta Vs Union of India’, 1981, the Supreme Court by a majority judgment held that the concept of primacy of the CJI was not really rooted in the Constitution. It held that the proposal for appointment to a High Court could emanate from any of the constitutional functionaries mentioned in Article 217, and not necessarily from the Chief Justice of the High Court.

The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 did not mean “concurrence” – therefore, although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them.

The judgment in the First Judges Case tilted the balance of power in appointments of judges of High Courts in favour of the executive. This situation prevailed for the next 12 years.

SECOND JUDGES CASE: In ‘The Supreme Court Advocates-on-Record Association Vs Union of India’, 1993, a nine-judge Constitution Bench overturned the decision in ‘SP Gupta’, and devised a specific procedure called the ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary. It was this judgment of the Supreme Court that was sought to be reviewed in the petition filed by the National Lawyers’ Campaign for Judicial Transparency and Reforms, and which was turned down by the court in October 2019 (mentioned above).

The judgment in the Second Judges Case underlined that the top court must act in “protecting the integrity and guarding the independence of the judiciary”. The majority verdict in the case accorded primacy to the CJI in matters of appointment and transfers, and ruled that the term “consultation” used in the Constitution would not diminish the primary role of the CJI in judicial appointments.

“The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary,” the court held in its judgment.

Ushering in the collegium system, the verdict in the Second Judges Case said that the recommendation should be made by the CJI in consultation with his two seniormost colleagues, and that such recommendation should normally be given effect to by the executive.

It added that although the executive could ask the collegium to reconsider the matter if it had an objection to the name recommended, if, on reconsideration, the collegium reiterated the recommendation, the executive was bound to make the appointment.

THIRD JUDGES CASE: In 1998, then President KR Narayanan issued a Presidential Reference to the Supreme Court under Article 143 of the Constitution (advisory jurisdiction) over the meaning of the term “consultation”. The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.

In response, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments and transfers. This has come to be the existing form of the collegium, and has been prevalent ever since.

In its opinion, the Supreme Court laid down that the recommendation should be made by the CJI and his four seniormost colleagues — instead of two, as laid down by the verdict in the Second Judges Case. It also held that Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted.

It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.

On what grounds has the collegium system been criticised?

Critics have pointed out that the system is non-transparent, since it does not involve any official mechanism or secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria, or even the selection procedure. There is no public knowledge of how and when a collegium meets, and how it takes its decisions. There are no official minutes of collegium proceedings.

Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.

The collegium system of appointment and transfer of judges of the higher judiciary has been debated for long, and sometimes blamed for tussles between the judiciary and the executive, and the slow pace of judicial appointments.

How has the debate over these concerns played out over the years?

The BJP-led government of Prime Minister Atal Bihari Vajpayee (1998-2003) had appointed the Justice M N Venkatachaliah Commission to examine whether there was need to change the collegium system. The Commission recommended that a National Judicial Appointments Commission (NJAC) should be set up, consisting of the CJI and two seniormost judges of the Supreme Court, the Law Minister of India, and an eminent person from the public, to be chosen by the President in consultation with the CJI.

The creation of the NJAC was one of the priorities of the Narendra Modi government, and the constitutional amendment and NJAC Act were cleared swiftly by Lok Sabha. Subsequently, a clutch of petitions were filed in the Supreme Court, arguing that the law enacted by Parliament undermines the independence of the judiciary, and is violative of the basic structure of the Constitution.

In 2015, a five-judge Constitution Bench of the Supreme Court struck down as unconstitutional the constitutional amendment that had sought to create the NJAC, in which a significant role had been envisioned for the executive in appointments to the higher judiciary. The Bench sealed the fate of the proposed system with a 4:1 majority verdict that held that the appointments of judges shall continue to be made by the collegium system, in which the CJI will have “the last word”.

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“There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary,” the court said in its majority opinion. Justice J Chelameswar wrote the dissenting verdict, in which he criticised the collegium system, saying that its proceedings were “absolutely opaque and inaccessible both to public and history, barring occasional leaks”.

On October 17, 2019, the Supreme Court dismissed a plea to review the verdict in the ‘Supreme Court Advocates-on-Record Association and Another vs Union of India’ (Second Judges Case) on grounds of an “inordinate delay of 9,071 days in filing the…petition, for which no satisfactory explanation had been offered”.

The Bench of then CJI Ranjan Gogoi and Justices S A Bobde, N V Ramana, Arun Mishra, Rohinton F Nariman, R Banumathi, U U Lalit, A M Khanwilkar, and Ashok Bhushan passed the order, which was released on November 6. Justices Bobde, Ramana, and Lalit succeeded Gogoi as CJI.

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