The Collegium System, introduced in response to the executive interference in judicial appointments, has failed to protect judicial appointments from executive interference. It is due to the reasons like Post-retirement appointments of judges.
The Collegium System is that under which appointments and promotion and transfer of the judges of the Supreme Court are decided by a forum which consists of the Chief Justice of India plus four of the senior-most judges of the Supreme Court.
This system is not formed by an Act of Parliament or by a Constitutional provision. Instead, it is the system evolved by the judgments of the Supreme Court. The SC collegium is headed by the CJI and comprises of four other senior-most judges of the court.
An HC collegium is led by its Chief Justice of High Court and four other senior-most judges of that court. The names recommended for appointment by a High Court collegium reach the government only after approval by the CJI and the Supreme Court collegium.
The government can return the recommended Judge for reconsideration by Collegium. If the collegium reiterates its recommendation then the government is mandated to appoint a person. The system was introduced for strengthening and improving the appointment process.
The Collegium has to send it’s recommendations of lawyers or judges to the Central Government. Similarly, the Central Government also sends some of its proposed names to the Collegium.
The Central Government investigates the names and resends the file to the Collegium for reconsideration.
In case the collegium considers the names, suggestions that had been made by the Central Government, it resends the file to the government for final approval.
In such a case, the government has to give its assent to the names.
The only loophole is that the time limit is not fixed for the government to send its reply.
Collegium System was evolved for appointment & transfer of judges at the High Court and the Supreme Court of India. Over the last four and a half decades i.e. in the aftermath of emergency, there has been immense litigation & deliberations on this topic which makes it imperative to delve into the issue.
The Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President. He/she should consult such a number of the Judges of the Supreme Court and of the High Courts in the States as he/she may deem necessary for the purpose.
The Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President in consultation with the Chief Justice of India and the Governor of the State. Further, the Chief Justice of the High Court should also be consulted except in case of his/her own appointment.
In First Judges Case (1981), the court said consultation under Article 124 doesn’t mean concurrence (unanimity). Based on this judgement, the President is not bound by CJI’s advice.
In Second Judges Case (1993), the court overruled its previous decision and said CJI’s advice is binding. Further CJI is required to formulate its advice based on a collegium of judges consisting of CJI and two senior-most SC judges.
In Third Judges Case (1998), the court expanded the collegium to a five-member body to include the CJI and the four senior-most judges of the court after the CJI.
In the Fourth Judges Case (2015), the SC upheld the primacy of the collegium. Further, the court strikes down the NJAC (National Judicial Appointments Commission) Act as unconstitutional. The Court held that the Act gave the government significant powers to appoint Judges. The Court held the Act encroached upon the judiciary’s independence and undermined the basic structure.
The collegium system separates the judiciary from the influence of the executive and legislative. This ensures impartial and independent functioning. So, the collegium system strengthens the principle of separation of powers (no organ of State should intervene in the functioning of another).
A collegium system of appointment and transfer of judges is the need of the hour. It is perhaps the most transparent and accountability-friendly system. It checks executive in its arbitrary use of power. It makes way for an independent judiciary with all its protecting safeguards.
The State is the main litigant in Indian Courts. About 46% of total cases pending in India pertains to the government. If the power to transfer the judges is given to the executive, then the fear of transfer would impede justice delivery.
The government handling the transfers and appointments is prone to nepotism. For example, there are ample amount of evidences where the civil servants were transferred for political gains. This cannot be feasible with the present collegium system. Further, the collegium system provides stability to the judges.
The Collegium system of judges appointing judges has been criticized on grounds that it lacks transparency, accountability, and objectivity but value-based judgments cannot be arrived at by merely counting numbers.
After all, not every eligible judge is fit to be a higher court judge, but being eligible also cannot be made a ground for exclusion. In the absence of any objective method of making such an evaluation, it was left to the wisdom of the judiciary itself to appoint judges from amongst its members. There are many examples where the collegium's decision has been criticized as per the media reports.
It gives enormous power to judges that can be easily misused. The collegium system has made India, the only country where judges appoint judges.
The selection of judges by collegium is undemocratic. Since judges are not accountable to the people or representative of peoples i.e. executive or legislative.
There is no official procedure for selection or any written manual for functioning. This creates an ambiguity in the collegium’s functioning.
Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles. Thus, it encourages mediocrity in the judiciary by excluding talented ones and breeds nepotism.
The delays over the appointment are still persistent. The Supreme Court last appointed a judge in September 2019, and it currently has four vacancies, which is expected to be increased further this year.
The procedure lacks uniformity- Sometimes a judge of HC is elevated as chief justice of the same HC while in other cases he/she is made chief justice of some other high court.
Proactive decisions on improving transparency were rolled back to secrecy. This includes the practice of disclosing the reasons while announcing the collegium’s decision.