The collegium system of appointment of judges to HCs and the SC may be on its last legs. For, the government has commenced the drafting process for a constitutional amendment to inject transparency in selection of candidates for appointment as judges to the higher judiciary, and more importantly give the executive an equal say in the process.
"The government has decided to put in place a system on appointment of judges for HCs and the Supreme Court which is more objective and transparent. It is better to put a system under the Constitution rather than have two Supreme Court judgments as the guiding force on such a sensitive and important field," law ministry sources told TOI.
The present system, termed by critics as a process of "judges appointing judges", had evolved after two constitutional Bench rulings of the apex court in 1993 and 1998 completely sidelining the executive in selection and appointment of judges for HCs and the SC. The collegium, headed by Chief Justice of India (CJI) and comprising the four senior-most judges of the apex court, has the sole prerogative to select and recommend names to the government for their appointment as judges of higher judiciary.
This "judges appointing judges" system, unique to a large democracy like India, has been criticised time and again by jurists, including some retired SC judges who were part of the constitutional Benches responsible for the 1993 and 1998 judgments.
The government first weighed the option of moving the Supreme Court with a petition seeking review of the two judgments. But it concluded that the better approach would be to either draft a law on the lines of the Judicial Standards and Accountability Bill, 2010 which proposes to lay down comprehensive statutory guidelines for inquiry against errant judges, or go for an amendment to the Constitution on appointment of judges.
Through the 1993 judgment, the SC had vested primacy in the CJI with regard to appointment of judges, altering the constitutional provision which conferred power on the President to appoint judges in consultation with the CJI. In the 1998 judgment, the SC went a step further and said the entire appointment process of judges to HCs and the SC would be controlled by the collegium system headed by the CJI and comprising four senior-most judges of the apex court, reducing the role of President, that is the executive government, to a mere rubber stamp.