The Collegium system.

Recently, two judges of the collegium expressed reservations regarding the appointment of four judges to the top court.

The move came after disagreements in the collegium over the procedure to be followed in how the body would select judges.

About
- It is the system of appointment and transfer of judges that has evolved through the judgement of the supreme court and not by an Act of Parliament or by the provision of the Constitution.
Constitution and Collegium:
- There is no mention of the Collegium in India’s original constitution.
Composition:
- The Supreme Court collegium is headed by the Chief Justice of India (CJI) and comprises the four other senior-most judges of the court.

First Judges Case:
- S P Gupta v Union of India (1981) the SC ruled that the President does not require the “concurrence” of the CJI in appointing judges.
- The ruling affirmed the pre-eminence of the executive in making appointments but was overturned 12 years later in the Second Judges Case
Second Judges Case:
- SC 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 SC.
Third Judges Case:
- SC on the President’s reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

The collegium of the CJI and the four senior most judges of the Supreme Court make recommendations for appointments to the apex court and high courts.
The collegium can veto the government if the names are sent back by the latter for reconsideration.
The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers to remain independent.

The Chief Justice of India (CJI) and the judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Constitution.
The senior most judge should make the appointment to the office of the CJI of the Supreme Court.
The Union Law Minister would seek the recommendation of the outgoing CJI on his successor.
Once the CJI recommends, the Law Minister forwards the communication to the Prime Minister, who would advise the President on the appointment.
In the case of the appointment of a Supreme Court judge, the collegium would recommend a candidate to the Union Law Minister.
The CJI would also ascertain the views of the most senior judges in the Supreme Court.

The opinions of each member of the Collegium and other judges consulted should be made in writing and form part of the file on the candidate sent to the government.

A Collegium consisting of the CJI and four senior-most judges recommends High Court judges.
The judges of a high court are appointed by the President.
But the President shall consult the Chief Justice of India, the Governor of the State and the Chief Justice of that High Court.
Under Article 219, a person appointed as a High Court Judge must take and swear an oath or affirmation before the Governor of the State before taking office.

Separation of powers:
- It helps maintain the independence of the judiciary in appointing its own judges.
Avoid politicisation:
- Since judges decide their own, it keeps any political motive of the executive away.
- It also prevents the transfer of judges based on executive demands.
Domain expertise:
- The executive organ is not a specialist or does not have the knowledge regarding the requirements of the judge as compared to the CJI.
Secrecy:
- It keep secret for the proper and effective functioning of the institution.
Consultative process:
- The Collegium makes recommendations after consulting with senior judges.

Lack of Transparency:
- No one knows how judges are selected, and the appointments made raise concerns of propriety, self-selection and nepotism.
- The system often overlooks several talented junior judges and advocates.
Lack of Consensus among Members:
- The collegium members often face the issue of mutual consent regarding the appointment of judges.
- The shadow of mistrust between the members of the collegium exposes the fault lines within the judiciary.
Unequal Representation:
- The other area of concern is the composition of the higher judiciary. While data regarding caste is unavailable, women are relatively underrepresented in the higher judiciary.
Delay in Judicial Appointments:
- The judicial appointment process is delayed due to a delay in recommendations by the collegium for the higher judiciary.
Undemocratic:
- The Collegium system involves judges selecting judges without public representation.

Open to RTI petitions:
- It helps any citizen seek and get information about the process through which a judge was appointed.
Recommendatory body:
- A recommendatory body should be constituted, including judges, political representatives, public representatives and experts.
Codify decisions:
- A written manual should be released by the SC, followed during appointments.
Reconsidering the Establishment of NJAC:
- The Supreme Court may amend the National Judicial Appointments Commission (NJAC) Act to have safeguards that would make it constitutionally valid and reorganise the NJAC to ensure that the judiciary retains majority control in its decisions.
Changing the Procedure of Recommendation:
- Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names for the President to appoint in order of preference and other valid criteria.

About
- It was a constitutional body proposed to replace the present Collegium system of appointing judges.
Foundation:
- The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014].
Structure:
- It consists of six people:
  - Chief Justice of India
  - Two most senior judges of the Supreme Court
  - Law Minister
  - Two ‘eminent persons.
Supreme Court stand:
- The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment.

Content Source: The Hindu