Is it time to rethink the collegium system of judicial appointments?

What is a collegium system?

So what exactly is a collegium system? It is a system through which judges are appointed and transferred in the Supreme Court and high courts across the country. In the Supreme Court, a group of five senior-most judges -- led by the chief justice of India -- decides on all the appointments and transfers of judges in the apex court. These appointments include elevation of high court judges to the apex court and direct appointments of senior advocates as apex court judges.

High courts have their own collegiums, comprising the court’s chief justice and two senior-most judges. It only makes recommendations for appointments. A final decision about appointing high court judges is taken by the collegium of the chief justice of India and two senior-most judges of the Supreme Court.

What Constitution says on appointment of judges   

According to Article 124 of the Constitution, judicial appointments to the Supreme Court must be made by the President in consultation with India’s chief justice and other senior judges of both the SC and High Courts.

While Article 217 says that appointments to the high courts should be fixed by the President, CJI and the Governors of states.

Why collegium system is at the centre of row

The collegium system has for long been a bone of contention between the executive and the judiciary. Union Law and Justice Minister Kiren Rijiju recently alleged that the collegium system was opaque and it was the government’s job to appoint judges.

The NDA government had passed the National Judicial Appointment Commission (NJAC) Act in August 2014, through the 99th constitutional amendment of Article 124A. The then law proposed a group of CJI, the two senior-most judges of the SC, the law minister, and two ‘eminent people’ in place of collegium. The NJAC had given the veto power to the CJI and other two senior judges in any appointment. It had also stipulated that the CJI would need the support of the other members of the commission. 

But the apex court on October 16, 2015, struck down the two laws related to the formation of NJAC terming them ‘unconstitutional’.

Alok Prasanna Kumar, Co-founder, Vidhi Centre for Legal Policy says, the collegium system is aimed at upholding independence of the judiciary. The system (allegedly) failed to prevent the union government from choosing nominees and appointing them at their discretion. The system has entrenched the hold of certain classes over the higher judiciary in the country.

Three crucial cases on collegium system

The debate around the collegium system is long-standing. The Supreme Court gave three decisions on this matter. In the first case of 1981, SP Gupta Vs Union of India, the Supreme Court ruled that the President can turn down the recommendations of the CJI.

In the second case, Supreme Court Advocates-on Record Association vs Union of India in 1993, the apex court overturned the judgment and upheld the ‘primal’ role of the CJI in appointing judges. The SC reiterated its stand in 1998, responding to a query by then President K R Narayanan about the role of the collegium. 

Law minister Rijiju wants to reintroduce the NAJC, saying that the collegium system is “not correct; not transparent; and not accountable.” Rijiju is not alone. There are other proponents for overhauling the system.

Some experts believe that while major changes are necessary, the collegium should not be completely scrapped. 

Let us listen in to senior advocate Sanjay Hegde 

Sanjay Hegde, Senior Advocate, Supreme Court of India says, we should not consider doing away with the collegium system just yet. Doing away with the recommendations of the judiciary would allow the the Law Minister, Prime Minister and Chief Ministers high stakes in judicial appointments   

And any reform will require time and rigorous engagement from both the judiciary and the executive.

Sanjay Hegde, Senior Advocate, Supreme Court of India says, need constitutional amendment to completely remove the collegium system. Present government made an attempt to set aside collegium as soon as it came to power and bring in the National Judicial Appointments Committee

But Prasanna Kumar believes there needs to be a third stakeholder in the reformation process.

Alok Prasanna Kumar, Co-founder, Vidhi Centre for Legal Policy says, two stakeholders in the appointment system will lead to conflicts. Propose third stakeholder - the bar and civil society - those who are beneficiaries of the system. Introduction of third stakeholder would possibly lead to a better balance

Evidently, the collegium system needs reforms. The long history of the politics surrounding the debate between the judiciary and the government, means that the process will require all stakeholders to come to a mutual understanding.