The collegium system of appointment of judges is popularly referred to as judges-selecting-judges.
The collegium system was created by two judgements of the Supreme Court in 1990s in which a body of senior apex court judges headed by the Chief Justice of India selected persons and recommended their names for appointment as judges.
Under the the 22-year-old court-framed collegium system of appointment and transfer of judges of high courts and the Supreme Court, the chief justice of the respective high courts and two other senior-most judges of the court comprise a collegium empowered by virtue of a 1993 judgment of the Supreme Court to identify suitable candidates, do due diligence and recommend for appointment as judges of the court.
The shortlisted candidates are scrutinized by a collegium of five senior-most judges of the apex court headed by Chief Justice of India before being cleared for appointment. The same collegium of the apex court identifies serving judges and chief justices of high courts for elevation to the Supreme Court.
There is no mention of the collegium either in the original Constitution of India or in successive amendments.
To work as a judge for seven to eight years in the Supreme Court is “killing”, Justice J S Khehar today said while speaking about the work pressure which he said leads to a “burnt out situation”.
“It is very tough to sustain. The stakes are high. The pressure is tremendous. Aggressions are high. I have spent years here. Seven to eight years in the the Supreme Court is killing,” said Justice Khehar, in a packed courtroom discussing suggestions to improve the collegium system.
Justice Khehar’ remarks, who has been the a Supreme Court judge since 2011, came after Attorney General Mukul Rohatgi said that if the best of the talents are away from being tapped for appointment of judges, it may be appropriate to look at people who are aged around 40 to 42 years of age.
The biggest problem with the collegium system is that it is completely opaque — and any system that is not transparent will be open to misuse. To begin with, therefore, the entire appointment system needs to be opened up to the Right to Information (RTI) Act, so that any citizen can seek and get information about the process through which a judge was appointed.
Information like names of advocates considered, bio-data of each candidate, why the collegium zeroed in on him/her while rejecting another, the copies of various forms filled by the candidate, dissent note, if any, by any member of the collegium, reasons why a High Court Chief Justice was ignored for elevation to the top court in favour of another HC CJ who was junior to him, all should be accessible under the RTI Act.
Consider this (hypothetical) situation: Three lawyers take a competitive exam for the subordinate judiciary. Two clear the test, and are appointed as magistrates; the third flunks and becomes a lawyer. After about 25 years as judicial officers, the two who had cleared the exam are considered for elevation to the Bench by a High Court collegium, comprising, ironically, the third lawyer, who, after a few years of practice, had been directly elevated to the Bench of the HC. Nothing wrong in that, except that this candidate was related to a former judge of the same High Court, and was elevated despite a lacklustre performance as a lawyer.
The instance of three additional judges of the Punjab and Haryana High Court being transferred to other High Courts even though none of their close relatives were practising in the same HC last year was particularly questionable because several other judges, appointed along with these three judges, had blood relatives or spouses practising in the same court but were not transferred. Many retired judges, including former Supreme Court judges, questioned the transfers.
To make the working of the collegium transparent, the Supreme Court and the government could simply peruse the 230th report of the Law Commission of India, submitted in 2009.
In its report, the Commission had said, “Sometimes it appears that this high office (HC Judge) is patronised. A person whose near relation or well-wisher is or had been a judge in the higher courts or is a senior advocate or is a political higher-up, stands a better chance of elevation. It is not necessary that such a person must be competent because sometimes even less competent persons are inducted. There is no dearth of such examples. Such persons should not be appointed, at least in the same HC.”
It had also said that the “uncle judges” syndrome could be eliminated by not posting any judge in a High Court where his/her kin was practising. The report had pointed out that government officers — Class II and upwards — were not given postings in their home districts, and suggested that judges should similarly not be posted to the same HC where they have practised as lawyers.
The forthcoming hearing should be used as an opportunity by the government to address its concerns — something it claimed to have wanted to address through the NJAC — by suggesting workable solutions aimed at making the collegium system transparent.
The aim should be to ensure that only the best make it to the Bench — because they know the law, and not because they are related to serving or retired judges, or because they were once juniors of a member of the collegium.
Collegium System Vs National Judicial Appointments Commission
Collegium Vs NJAC
The Parliament has recently passed two bills meant to create National Judicial appointments commission which would replace the existing collegium system .A brief overview about it is presented over here.
Which are the bills and what are they meant for ?
Constitution (121st Amendment) Bill, 2014 and the National Judicial Appointments Commission (NJAC) Bill, 2014.
The combined effect of the two bills is to establish a NJAC which will be responsible for appointment of CJI, judges to the Supreme Court and high courts as well as transfer of judges between high courts.The Bill seeks to enable equal participation of Judiciary and Executive, ensure that the appointments to the higher judiciary are more participatory, transparent and objective.
What it tries to replace and why ?
The establishment of the NJAC marks the end of the judicial collegium, a committee comprising the Chief Justice of India (CJI) and 4 senior Supreme Court judges. The collegium, hitherto responsible for appointments and transfers, was widely felt to have lost its legitimacy as a credible and impartial appointment authority, given the absolute secrecy that characterised its functioning.ex : Justice Dinakaran appointment and appointment & elevation of a judge of the madras high court even after corruption charges against him.
How did Collegium System evolve ?
It’s more complex than shown above, Please see below for detailed evolution process .
Does the Constitution amendment bill amend or insert any articles ?
Yes . It amends article 124(2) – creation of NJAC and inserts new articles
Article 124(a) – Composition of NJAC
Article 124(b) – Functions of NJAC and
Article 124(c ) – Powers of parliament to make laws on procedures
Advantages of the bill :
The NJAC composition is a mix of both judiciary and executive rather than judges appointing judges as
earlier.Even Civil society may be included if the eminent persons are from this domain.
Veto by two members of the commission might stop the appointment of a judge, if he/she has any cases against him/her.
Just seniority alone as a criteria may not work making it more transparent than before.
NJAC will elicit views of the Governor and Chief Minister before making recommendations.
Disadvantages of the bill and Criticisms against it :
Reform bills pay scant attention to detail.
Most crucial issue surrounding the NJAC concerns its composition is problematic in principle and practice.
In principle, there is a strong claim that not having a preponderance of judges in a commission to appoint judges is in violation of the independence of the judiciary.That judicial preponderance is essential in a judicial appointments mechanism was held by the Supreme Court itself in The Second Judges Case which established the collegium system. SC brought this because of Emergency experience when executive led appointments made judiciary subservient and it failed to perform the role of a counter majoritarian institution.
While the NJAC does not envisage a return to executive primacy, it is a step in that direction and must be viewed with scepticism.
This is especially so in appointments to the office of the CJI. For such appointments, the two senior-most judges on the NJAC have to recuse themselves, since they will be in consideration for appointment as CJI. This will mean the CJI is the only judicial member for this particular selection.
Further, for such selection, theNJAC will also have the discretion to assess whether the candidate is “fit to hold the office”.
While fitness to hold the office might be a relevant criterion per se, it requires further explication of its meaning – does this refer to physical fitness or ability to function as CJI ? If the latter, then what are these qualities which are distinct from those possessed by a judge? On what basis can such qualities be assessed without a formal application and interview? The bills are conspicuously silent on these aspects.
Make illusory references to transparency and particularly in the details of the process. the shortlisting of candidates, their final selection, and the exercise of a veto in respect of certain candidatures can all be done by the NJAC in secret without any reasons being provided.
Safeguards to ensure that persons are appointed on the basis of their ability rather than their connections are thus largely absent. There is no guarantee that the spectre of nepotism and trade-offs that characterised several collegium appointments will not be replicated in the NJAC.
Also recently WB govt expressed concern over the role of Governor in the appointment of judges .The question was whether the governor should act in his discretion or as per the advice of the council of ministers ? The centre clarified that he/she should work on the basis of the constitution i.e as per the aid and advice of the council of ministers unless specifically written otherwise.But this definitely gives scope for doubt.
Veto by two non judicial members can also override the majoritarian decision , which is a concern for the judiciary as the decision of the three judges (CJI+2 senior most SC judges) can be overwritten.(In the present system , sending a recommendation back to the collegium is part of the consultative process and there is no reason why the appointment of those about whom no issues had been raised should be held up.The collegium had the option of reiterating its recommendation, a move that will be binding on the executive.
The same would be the case with the new commission , even if the president sends it back, if 5 members approve and resend it , he has to approve that appointment but the problem is with non judicial members overwriting judicial decisions.)
As per the petitioners even the “eminent persons” are not chosen unanimously but amongst the Prime Minister, CJI and leader of the Opposition in Lok Sabha.
According to former Chief justice Lodha, there should not be fear among the judiciary that here is an authority which appointed me while delivering his decision, that will undermine the independence of the judiciary.
Many feel that this gives unbridled power to the parliament to regulate judicial appointments.
Petitioners who filed cases against the bill have argued that independence of the judiciary is a basic structure of the constitution and it is being violated with political interference in their appointments and transfers.
What lies ahead ?
In light of these deficiencies, a constitutional challenge to the NJAC is inevitable in the Supreme Court.
15 states to ratify the Constitution amendment to become a law.
The judiciary, having cited governance deficits to justify expansive and activist interpretations of the Constitution in this time, might need to closely introspect about its interpretive approach and wider public role.
While a commission to govern judicial appointments is vital, in the prevalent political atmosphere with the bills as they stand, this particular iteration of the commission might well prove to be a remedy that is worse than, or at least as bad as the malaise it seeks to cure.