What is the collegium system?

It is the system of appointment and transfer of judges that has evolved through
judgments of the Supreme Court, and not by an Act of Parliament or by a provision
of the Constitution. The Supreme Court collegium is headed by the Chief Justice of
India and comprises four other seniormost judges of the court. A High Court
collegium is led by its Chief Justice and four other seniormost judges of that court.
Names recommended for appointment by a High Court collegium reaches the
government only after approval by the CJI and the Supreme Court collegium. Judges
of the higher judiciary are appointed only through the collegium system — and the
government has a role only after names have been decided by the collegium. The
government’s role is limited to getting an inquiry conducted by the Intelligence
Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme
Court. It can also raise objections and seek clarifications regarding the collegium’s
choices, but if the collegium reiterates the same names, the government is bound,
under Constitution Bench judgments, to appoint them as judges.

What does the Constitution say regarding the appointments of judges?

Judges of the Supreme Court and High Courts are appointed by the President under
Articles 124(2) and 217 of the Constitution. The President is required to hold
consultations with such of the judges of the Supreme Court and of the High Courts
as he may deem necessary.

Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the
President by warrant under his hand and seal after consultation with such of the
Judges of the Supreme Court and of the High Courts in the States as the President
may deem necessary for the purpose and shall hold office until he attains the age of
sixty-five years. Provided that in the case of appointment of a Judge other than the
Chief Justice, the Chief Justice of India shall always be consulted.”

And Article 217: “Every Judge of a High Court shall be appointed by the President
by warrant under his hand and seal after consultation with the Chief Justice of India,
the Governor of the State, and, in the case of appointment of a Judge other than the
Chief Justice, the Chief Justice of the High Court.”

So how did the collegium system evolve when the Constitution is silent on it?

The collegium system has its genesis in a series of judgments called “Judges Cases”.
The collegium came into being through interpretations of pertinent constitutional
provisions by the Supreme Court in the Judges Cases.

First Judges Case: In S P Gupta Vs Union of India, 1981, the Supreme Court by a
majority judgment held that the concept of primacy of the Chief Justice of India was
not really to be found in the Constitution. It held that the proposal for appointment
to a High Court can emanate from any of the constitutional functionaries mentioned
in Article 217 and not necessarily from the Chief Justice of the High Court. The
Constitution Bench also held that the term “consultation” used in Articles 124 and
217 was not “concurrence” — meaning that although the President will consult these
functionaries, his decision was not bound to be in concurrence with all of them. The
judgment tilted the balance of power in appointments of judges of High Courts in
favour of the executive. This situation prevailed for the next 12 years.

Second Judges Case: In The Supreme Court Advocates-on-Record Association Vs

Union of India, 1993, a nine-judge Constitution Bench overruled the decision in S P
Gupta and devised a specific procedure called ‘Collegium System’ for the
appointment and transfer of judges in the higher judiciary. Underlining that the top
court must act in “protecting the integrity and guarding the independence of the
judiciary”, the majority verdict accorded primacy to the CJI in matters of
appointment and transfers while also ruling that the the term “consultation” would
not diminish the primary role of the CJI in judicial appointments.

“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,” it held.

Ushering in the collegium system, the court said that the recommendation should be
made by the CJI in consultation with his two seniormost colleagues, and that such
recommendation should normally be given effect to by the executive. It added that
although it was open to the executive to ask the collegium to reconsider the matter
if it had an objection to the name recommended, if, on reconsideration, the collegium
reiterated the recommendation, the executive was bound to make the appointment.

Third Judges Case: In 1998, President K R Narayanan issued a Presidential

Reference to the Supreme Court over the meaning of the term “consultation” under
Article 143 of the Constitution (advisory jurisdiction). The question was whether
“consultation” required consultation with a number of judges in forming the CJI’s
opinion, or whether the sole opinion of CJI could by itself constitute a
“consultation”. In response, the Supreme Court laid down 9 guidelines for the
functioning of the coram for appointments and transfers — this has come to be the
present form of the collegium, and has been prevalent ever since. This opinion laid
down that the recommendation should be made by the CJI and his four seniormost
colleagues, instead of two. It also held that Supreme Court judges who hailed from
the High Court for which the proposed name came, should also be consulted. It was
also held that even if two judges gave an adverse opinion, the CJI should not send
the recommendation to the government.

And why has the collegium system been criticised?

Critics argue that the system is non-transparent, since it does not involve any official
mechanism or secretariat. It is seen as a closed-door affair with no prescribed norms
regarding eligibility criteria or even the selection procedure. There is no public
knowledge of how and when a collegium meets, and how it takes its decisions.
Lawyers too are usually in the dark on whether their names have been considered
for elevation as a judge.

What efforts have been made to address these concerns?

The NDA government has tried twice, unsuccessfully both times, to replace the
collegium system with a National Judicial Appointments Commission (NJAC). The
BJP-led government of 1998-2003 had appointed the Justice M N Venkatachaliah
Commission to opine whether there was need to change the collegium system. The
Commission favoured change, and prescribed an NJAC consisting of the CJI and
two seniormost judges, the Law Minister, and an eminent person from the public, to
be chosen by the President in consultation with the CJI. The NDA 2 regime had
NJAC as one of its priorities, and the constitutional amendment and NJAC Act were
cleared swiftly. A clutch of petitions were subsequently filed in the Supreme Court,
arguing that the law undermined the independence of the judiciary, and the basic
structure of the Constitution.

So, what happened to the NJAC then?

Last year, a five-judge Constitution Bench declared as unconstitutional the

constitutional amendment that sought to create the NJAC, which had envisioned a
significant role for the executive in appointing judges in the higher judiciary. The
Bench sealed the fate of the proposed system with a 4:1 majority verdict that held
that judges’ appointments shall continue to be made by the collegium system in
which the CJI will have “the last word”. “There is no question of accepting an
alternative procedure, which does not ensure primacy of the judiciary in the matter
of selection and appointment of judges to the higher judiciary,” said the majority
opinion. Justice J Chelameswar wrote a dissenting verdict, criticising the collegium
system by holding that “proceedings of the collegium were absolutely opaque and
inaccessible both to public and history, barring occasional leaks”.

How are appointments being made now?

The collegium has been making recommendations for appointments and transfer of
judges. However, the 2015 ruling, in the end, had also paved the way for a new
Memorandum of Procedure (MoP) to guide future appointments so that concerns
regarding lack of eligibility criteria and transparency could be redressed. The Bench
had asked the government to draft a new MoP after consultation with the CJI. But
more than a year later, the MoP is still to be finalised owing to lack of consensus on
several fronts between the judiciary and the government. Since the new MoP is not
in place, the government has been slow in clearing the appointments, which has also
become a matter of judicial decision after a clutch of petitions were filed in the
Supreme Court against the delay in making appointments.

The Indian Express News Paper Article

The Collegium Syndrome: A Critical
Appraisal
Saurabh Sinha
October 01, 2013 | Saurabh Sinha Web Exclusives, Collegium

“Power tends to corrupt and absolute power corrupts absolutely” Lord Acton

The above statement by Lord Acton needs to be reframed and expanded in the present context of
governance as follows:-

“Power tends to corrupt and absolute power corrupts absolutely-Financially,

Intellectually, and Morally”.
The system of checks and balances coined in the context of governance has been in place to keep a
tab on abuse of powers and check unbridled authority, unfettered powers and uncontrolled corruption.

The judicial system, has ever since the inception of the constitution, been revered and won accolades
for maintaining the rule of law and acting as the real purveyor of democracy. But the recent
controversy regarding the appointment of judges to the higher judiciary [the high courts and the
supreme court] through the collegium system and a contemplation for a revisit of the procedure for
ensuring greater transparency and accountability and maintaining efficiency in administration has
created a flutter amongst the legal fraternity and raised eyebrows as well as garnered support for
appointment by this process. It is in this context that the collegium system needs to be analyzed and
interpreted.

HISTORICAL BACKGROUND

Under the constitutional scheme of things, judges of the higher courts [Supreme Court and High
Courts] shall be appointed by the President after consultation in the case of judges of Supreme Court
by such judges of Supreme Court and High Court as he may deem necessary [Art 124 (2)]. Provided
that in appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be
consulted, and in the case of a judge of a High Court after consultation with the Chief Justice of India
and the Governor of the State [Art 217 (1)] and in the case of a judge other than the Chief Justice the
Chief Justice of High Court.

The language of the Constitution does not speak of appointment by the present collegium system
which clearly and unequivocally gives the power to appoint such judges by the President. The present
system emerged when the word ‘consultation’ was subjected to strict scrutiny and intense
examination on the judicial scales of interpretation which resulted in the emergence of two judgments
of the Court.

The first judgment Supreme Court Advocates on Record Association vs. Union of India [1993 4 SCC
441] held that in the matter of appointment of judges of the Supreme Court and the High Courts the
Chief Justice of India should have primacy. The Court held that greatest significance should be
attached to the view of the Chief Justice of India formed after taking into account the views of the
Supreme Court.

In the Presidential reference case [AIR 1999 SC I] the majority of the nine judge bench held that in
regard to the appointment of judges to the Supreme Court under Article 124 (2), the Chief Justice of
India should consult “a collegium of four senior most judges of the Supreme Court”. The collegiums’
opinion should be in writing and the Chief Justice of India should send his own recommendation along
with that of the collegium to the President.

Thus while the former judgment gave primacy to the opinion of the Chief Justice of India, the latter
gave the concept of the collegium system which is being followed till the present times. The present
system, thus, in the real sense ,gave all the powers of appointment to the collegium with the Chief
Justice of India as the initiator and the President only becoming a formal approver.

The questions and controversies being raised about the present system are of opaqueness, lack of
transparency, biasness and prejudice and minimum accountability. Each aspect would have to be
looked through the prism of efficiency in administration and governance and the improvement towards
the same. Also, the present system needs to be analyzed and construed vis-à-vis the procedure being
mooted viz. appointment by a Judicial Appointments Commission.

Since studying the administrative and governing system of any nation would mean the analysis of all
the three wings viz. the political executive, the administrative wing and the judicial system, the
primary task or function of all of them being public welfare in their own ways in their respective
spheres, it calls for better co-ordination and relationship between the three wings coupled with greater
accountability without in anyway undermining the indispensable independence of any wing.

Since the nature of work of all is public welfare, it becomes imperative to perform it with requisites of
fairness, transparency and accountability from the very inception. While transparency would mean
greater public access and necessary information on the functioning, appointments and working of
these public figures/authorities/institutions, fairness would imply the degree of rectitude and efficiency
being employed by such authorities while performing/discharging their duties. Accountability would
denote accountability to the public [for whom they work] which in other words would mean the
swiftness and promptness with which they are removed when showing biasness, prejudice and
malfunctioning [corrupt practices-financial irregularity, moral disintegration and intellectual decay,
indolent and cavalier attitude in working].

The judicial wing which is independent of the executive and the legislature works under a three tier
structure. While judges of the subordinate courts are appointed in the same manner as their executive
counterparts under Article 234 of the Constitution through an examination conducted by the State
Public Service Commissions, those of the Supreme Court and High Courts are appointed through the
collegium system mentioned earlier.

The questions being raised about selection by collegium [Chief Justice and four senior most judges]
are the following:

1. Lack of access of records to the public who are elevated to the bench from amongst the
members of the bar.
2. No information regarding antecedents, background of the persons who are appointed as
judges.
3. Biasness, opaqueness and nepotism in selection.
4. Selection done in non-fair manner.

The contention that appointment of judges by a Judicial Appointments Commission would undermine
judicial independence is untenable. Though independence is necessary for the proper functioning of
judiciary, the following points need to be understood:-
 1. Independence cannot be used as a tool to shield the required/necessary transparency
2. Access to information cannot be denied under the guise of judicial independence.

Also independence needs to be understood from two different perspectives:

1. Independence in appointments/selection.
2. Independence in working.

While the latter is imperative for maintaining the dignity of judiciary, the former independence by a
non-consultative opaque selection process with total lack of information will only erode people’s faith
in its fairness and functioning. Independence in the former would mean elevation of only such persons
to the bench the records [background, antecedents, reputation, standing at the bar, work] of which
are known only by the Chief Justice and four senior most judges with the President only putting a
formal stamp of approval.

The collegium being a body whose primary task is of justice dispensation may have neither the
requisite expertise nor the infrastructural backing to scrutinize each and every application properly.
Many a times it has to rely solely on the strength of representation made by the High Court or senior
members of the bar. If inefficient members are elevated, it will effect the working capacity and will be
reflected in the judgments the significance of which are always far reaching and of greater magnitude.

The appointment by a Judicial Appointments Commission has worked out the following modalities:

The Commission shall consist of seven members- The Chief Justice of India, two judges of the
Supreme Court, Law Minister, two eminent persons as members and Secretary (Justice) in the Law
Ministry as member secretary.

The points of controversies being raised are as follows:-

1. The executive members in the commission would make the selection as per their own whims
and fancies and in a partial manner undermining judicial autonomy and impropriety and
adversely affecting its functioning.
2. The eminent persons who will have a political patronage or other lucrative promises by the
government and other non-judicial members will have a larger say making it a one sided affair
[will be tilted more towards them in forming an opinion during selection].

Both the points need a serious debate:-

a. As reiterated earlier, independence needs to be looked into only from the perspective of
independence in working and functioning. Asking freedom in the selection process under the
guise of independence would more likely to make it biased and prejudiced. Given the
heterogeneous nature of the composition of the commission, the selection would be thorough
and more rigorous after an informed debate, diverse opinion/expertise and better
infrastructure, the information of which should be available to the citizens as well as the legal
luminaries both under statutory law and through open consultation.
b. What are the criteria for judging that the executive will play a dominant role in the selection
process? Under what method the conclusions can be arrived at that the judicial members
would have no say and will only sit as mute spectators?

It would be wise to mention the models available in some other countries:-

United Kingdom:
The judicial appointments commission is responsible for selection of judges in England and Wales. It is
a non-departmental public body which was created on April 03, 2006. It consists of 15 members: two
from the legal profession [1 barrister, 1 solicitor] five judges, one tribunal member, one lay justice
[magistrate], six lay people including the chairman.

Candidates submit a nine page application form and are to be judged on merit alone measured by five
important qualities- intellectual capacity, personal qualities [integrity, independence, judgment,
decisiveness, objectivity, ability and willingness to learn], ability to understand and deal fairly,
communication skills and efficiency.

South Africa:

The judiciary of South Africa consists of:-

1. The Chief Justice of South Africa, the deputy chief justice and other judges of the
constitutional court.
2. The President, deputy president and other judges of the Supreme Court of Appeal.
3. The judge president, deputy judges president and other judges of each high court.

Permanent judges in the higher courts are appointed by the President of South Africa in consultation
with the judicial service commission as well as leaders of political parties represented in South African
National Assembly.

The judicial service commission’s membership includes:

1. The Chief Justice of South Africa who presides over its meetings.
2. The President of the Supreme Court of Appeal.
3. One Judge President designated by the Judges President.
4. The minister of justice and constitutional development, or his/her designated alternate.
5. Two practicing advocates nominated from within the advocates profession
6. Two practicing attorneys nominated from within the attorney’s profession
7. One teacher of law, designated by the teachers of law at South African universities [typically
the dean of one of the faculties of law]
8. Six members from the national assembly [including three from the opposition parties].
9. Four members from the National Council of Provinces.
10. Four more persons designated by the President as head of the national executive, after
consulting the leaders of all the parties in the national assembly.

Australia:

The Attorney General consults widely with interested bodies seeking nomination of suitable
candidates. In addition, the Attorney General also writes to:

1. State and territory attorneys general

2. Chief Justice of the High Court
3. Justices of the High Court
4. State and territory chief justices.
The Attorney General then considers the field of highly suitable candidates and writes to the Prime
Minister seeking his/her and/or cabinet approval. If approved by the cabinet, the Attorney General
makes a recommendation to the Governor General who considers the appointment through the federal
executive council process. Once the cabinet has approved the Attorney General’s recommendation of
the nominee, the appointment papers [including the Commission of appointment] are forwarded to the
executive council for consideration by the Governor General. If in agreement, the Governor General
signs the Commission of appointment and it is fixed with the great seal by way of authentication. Once
the appointment has been approved by the Governor-General in executive council, the attorney
general publicly announces the appointment.

Canada:

Appointments to the superior courts in each province or territory:

Candidates for these courts are screened by a judicial advisory committee established for each
province. Each committee is composed of representatives of the federal and provincial governments,
the provincial [or territorial] law society, the Canadian Bar Association, the judiciary and the general
public.

Lawyers who meet the legal and constitutional requirements can apply, as well as provincial and
territorial court judges. These candidates must complete comprehensive Personal History Form [PHF].
In its assessment of each candidate, the committee reviews the PHF and consults references and other
persons both in and outside legal realm.

Following its review the committee categorizes lawyer candidates as “recommended” or “unable to
recommend” for appointments with reasons for this decision. In case of judge candidates, the
committee does not categorize the applicant, but instead formulates “comments” regarding the
application. A list of all candidates reviewed by the committee, together with the above categorization
and reasons or “comments” in the case of judge candidates is forwarded by the committee to the
federal minister of justice. The minister draws an appointment from the list of names received from
the committees, and recommends that individual to the federal cabinet. When the appointment is that
of a Chief Justice or a Puisne Chief Justice, the recommendation to the cabinet is made by the Prime
Minister of Canada.

A more plausible, practical and workable solution would be to appoint the judges of the higher courts
through an All India Examination to be conducted by the Union Public Service Commission [under
Article 312 of the Constitution] in a fair and transparent manner and an intensive post selection one or
two year training program be framed just like the judges of the subordinate courts are appointed by
the State Public Service Commission under Article 234 of the Constitution.

In this context it would be prudent to mention the appointment system of judges in China:

In China a High Court judge can be appointed at 23 after he/she passes the National Judiciary
examination [similar to the Indian Civil Services] examination and completes the stipulated period of
professional training. [The Hindu, December 27, 2010].

It would be also pertinent to quote Justice D.A. Desai [Chairman, Eleventh Law Commission-Report
116, 1986] in this regard:

“Senior and well placed members of the bar are reluctant to accept judicial services a fact universally
accepted. Service with poor or adequate salary is hardly attractive to a lawyer who has started
earning because he knows that sky is the limit. If experienced lawyer is impervious to judicial service
or social accountability, why not catch people young and give them intensive training. A short practice
hardly trains effectively. If, on the other hand, intensive pre service training is given to fresh young
recruits, they will turn out to be better judges. There are countries in which practice at the bar is not a
pre-requisite or essential qualification to be eligible to become a judge!

Conclusion

A good, agile, efficient and transparent administration is the hallmark of democratic functioning for
which independence is a pre-requisite. However, one cannot ask for an all encompassing freedom so
as to shield transparency and shun accountability completely which may prove harmful for
governance. The need of the hour is to revisit the present system of appointment of judges to the
higher judiciary to improve administrative efficiency, transparency and overall system of governance.