Structure:

1. Define what is a collegium system ( 20-30 words)
2. Functioning of the system- mainly bring out the failures of the system. (issues/demerits of the system. ( 120-130 words)

Content: 

Collegium system: It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.

What does the Constitution actually prescribe?

• Article 124 deals with the appointment of Supreme Court It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.
• Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the The Chief Justice of the High Court concerned too should be consulted.

Evolution of collegium system

• The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”.
• The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years
• On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates- on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such It overturned the S P Gupta judgment, saying “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.”
• For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver.
• In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegiums
• Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the This was the “Third Judges Case”.
• The above discussion makes it clear that before 1993, the Executive muzzled with the Judiciary in the matter of judicial appointments and the Collegium system evolved so that independence and separation of judiciary from executive can be For the last two decades, the appointment of the judges has been an appointment by the judges. But now, it seems that it is appointment “for the judges”. It appears that the Collegium system of judicial appointments has resulted in incompetent, inefficient, ethically compromised individuals being appointed as judges.

Arguments against the collegium system

• The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;
• A closed-door affair without a formal and transparent system;
• The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates
• For instance, in May 2013, the judges of the Punjab and Haryana High Court protested the elevation of nine advocates as judges of the high They alleged that the independence and integrity of the judiciary has been put at stake by the Collegium while giving recommendations because the decisions of the Collegium seem to have been based on considerations other than merit and integrity of the candidate.
• These judges further wrote that it has now become a matter of practice and convenience to recommend advocates who are the sons, daughters, relatives and juniors of former judges and Chief Nepotism and favouritism is writ large.
• The implications of such degradation are that the judges are selected on criteria such as caste, religion, office affiliations, political considerations and even personal interests and quid pro quo
• The result of this is the poor quality of judges and judgements. It resulted in delay in the judgement delivery, lack of clarity and clear reasoning in judgements, lack of knowledge of even basic principles of law and lack of ability and willingness to learn, ghost writing of judgements
• The collegium system of the appointments also raises demands for transparency and openness in the appointment process because of the secrecy shrouding the appointments
• The issue is NOT who appoints the judges but is how they are appointed. As long as the process is opaque and appointments are made on personal considerations, there will be problems of favouritism, nepotism and appointments on criteria other than merit and capacity
• To overcome the above deficiencies in the Collegium system, the parliament passed the National Judicial Appointment Commission (NJAC) act 2014