Origin of the COLLEGIUM
The tern collegium is defined as “a group of people which has approximately equal power and authority”, but the term is incorporated by judicial intervein. The Bar council of India on 17/10/1981 during a national seminar of lawyers in Ahmedabad put fort the concept of establishing a system through which appointment of Supreme court judges by 3 authorities:
- The Chief Justice of India.
- Five senior judges of the Supreme court.
- Two representatives of Bar Council of India, and Supreme Court Bar Association.
This system through which there was a decentralized selection process for appointment of new supreme court judges in the country came to be known as the Collegium system. The recommendation made by the collegium is binding even on the President of the country but in some exceptions, he can say for a reconsideration.
In the case of S.P. Gupta v Union of India, Justice Bhagwati on 30/12/1981, established the importance of collegium system in the country. He openly expressed her dissatisfaction with the existing model for that time for appointment of new Supreme court judges which had been an exclusive power of the President of India. According to him it was “unwise” to give a single individual such an important power to make “crucial” and “sensitive” appointments. He suggested that there should be a Collegium to make such recommendation which later should be given to the President for the appointment of Supreme court judges, the recommendation panel should be broad-based and should have consultation with wider interest in mind.
Judicial establishment and evolution of the COLLEGIUM
After the collegium was proposed by Justice Bhagwati, in 1993, a Nine-Judge Constitutional Bench of the Supreme Court in the Second Judges' Case, passed a majority judgement, and similarly in 1998 The unanimous opinion of the Supreme Court's nine-judge Constitutional Bench in the Third Judges' Case accomplished the task of establishing the collegium of judges. But the formation which was initially proposed by Justice. Bhagwati was ignored and the Collegium was more narrow-based with only apex court judiciary involved.
First judge case, 1981
In the First Judges Case, 1981, the Supreme Court ruled that the word "Consultation" could not be interpreted to mean "concurrence" = the CJI's opinion is not binding on the executive. Only in exceptional circumstances could the Executive deviate from the CJI's opinion, and any such decision could be subject to judicial review.
The Second JudgesCase, 1993
J. S. Verma overruled the majority view in the First Judges Case, giving the President primacy in the appointment of Judges to superior courts. Justice Verma ruled that the CJI's consultative opinion had to be formed after considering the views of the Supreme Court's two senior most judges. This would ensure that the Chief Justice of India's opinion was formed collectively by a body of people at the highest level of the judiciary, rather than his individual opinion.The opinions of the Chief Justice and the Supreme Court's senior most judges should be given significant weight. In matters pertaining to the appointment of Supreme Court Judges, the CJI should be given precedence.
Third Judge Case, 1998
In the third case, the Nine-judge bench in an unanimously agreed upon, the Chief Justice of India's consultation with a plurality of judges, referred to as a Collegium of judges, in forming his opinion for recommending candidates for appointment to the Supreme Court was to ensure that the best available talent is brought to the Supreme Court Bench. Because of their long tenures on the Supreme Court, the Chief Justice of India and the senior most Judges were best suited to accomplish this goal.As a result, justice S. P. Bharucha stated that 'it is desirable that the Collegium consist of the Chief Justice of India and the four senior most Judges of the Supreme Court.' As a result, the number of senior-most Supreme Court judges on the Collegium was increased from two to four.
The working of the Collegium
- Appointment of Chief Justice of India (CJI)
The president of India appoints the CJI, the outgoing CJI recommends his successor.
- Appointment of Supreme Court Judges
The Collegium consisting of CJI and 4 senior-most judges recommends the appointment of new Supreme Court judges. The collegium gives their recommendation to the law minister who forwards it to the Prime Minister which advises the President for the final appointment.
- Appointment of Chief Justice of High Court
The president with consultation of CJI and other collegium members and governor of the respective state. The candidate is selected from outside the state.
- Appointment of High Court Judges
The president while in consultation with the CJI and other collegium members and the governor of the respective state.
Criticism faced by the Collegium system:
- Unconstitutional in nature:
The concept of collegium is nowhere mentioned in the constitution and was evolved in the judicial process itself, and the fact that it ignored the initial concept of wider process can seem to be a more autocratic situation of the judiciary to retain the power of selecting judges within themselves.
There is no official procedure that needs to be followed for the selection process, there is no written guidelines which lays down the foundation, there is also no publication of the meetings held and only selective snippets are released amongst the people.
- Can be biased
The people related to the existing judges tend to be popular choices for the judicial roles. Thus, it contradicts the founding principle of the Collegium, as it was initially founded to include talented people over biased people.
The collegium has failed to be efficient and has not been able to fill out the vacancies of judges in courts.
The collegium system's subjectivity and inconsistency highlight the need to rethink the process of appointing judges. The NJAC should be amended to ensure the judiciary's independence in its decisions and reintroduced in some form or another.
The Supreme Court should issue a written manual that should be followed during appointments, and all meeting records should be made public to ensure transparency and a rule-based process.As a result, India must restore the higher judiciary's credibility by making the process of appointing judges transparent and democratic. Apart from reforming the collegium system, the implementation of All India Judicial Services can help to improve the quality of judges (AIJS).