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Unraveling the Collegium System in India: Challenges, Controversies, and Calls for Reform

The Collegium System in India is not new this concept was introduced in India in the case of the second judge‘s case (1993). A discussion between people before a decision is taken means concurrence. It was not only the CJI's individual opinion it is an institutional decision formed in consultation with the two most senior judges in the Supreme Court.

What is the Collegium System?

The Collegium System is the system in which appointments and transfers of judges are decided Council of four senior judges of the Chief Justice of India and the Supreme Court. The Collegium System has no place in Indian Constitution.

What does the Indian Constitution prescribe?

In Constitution, Article 124 deals with the appointment of Supreme Court judges this article mentions that the appointment of Supreme Court judges is made by the President after consultation with the judges of the High Court and the Supreme Court as such the President deemed to be necessary. The Chief Justice of India is to be consulted in all the appointments but not his or her own.

a In the constitution, Article 217 deals with the appointment of the High Court judges this article mentions the appointment of the High Court judges by the President with the consultation with CJI and the Governor of the state. The CJ of the High Court is concerned to be consulted.

How did the judiciary come to get primacy?

Judicial primacy is essential for the appointment of judges and the Collegium System established by the Second Judge‘s case is the main source of establishing judicial primacy in the appointment process in India. The Supreme Court is of the clear view that unless judicial primacy is observed in appointment, judicial independence cannot be achieved and the principle of separation of powers will continue to be violated.

My personal opinion about such judicial primacy is that as long as the appointment process is fair and impartial, the primacy achieved by the Collegium System is good but when such primacy is against the essence of the Constitution it will be difficult to follow such a process. Because appointments to the judiciary are one of the most important factors in upholding the constitution in India because judges are the ones who regulate deviation. Therefore, such an appointment process should ensure independence, integrity, and reflective diversity.

What are the issues of the Collegium System in India?

It envisages selection of judges for the Supreme Court and High Court on the basis of seniority rather than merit and individual jurisprudence. The candidate selection process is highly opaque and not open to debate.Apparent delays in the electoral process have led to increased vacancies in the courts, delaying justice delivery systems.

Independence from the executive in the electoral process has led to a complete breakdown of the inter-institutional system and failure of checks and balances as envisaged in the Indian Constitution.

Collegium Systems are rife with red tape, favoritism and nepotism. The obvious flaw of the Collegium System can be traced to the fact that India is the only democratic country in the world where the judiciary elects its judges. Instances like Justice Karnan openly challenging Supreme Court judgments and contempt of the court shows the inherent flaws in the Collegium System of the judiciary.

Recently the Government of India tried to bring in the National Judicial Appointments Commission (NJAC) through the 99th Constitutional Amendment to ensure transparency in the functioning of the judiciary. However, the Supreme Court rejected it citing a threat to judicial independence. This logic is flawed and short-sighted.

What moves should be taken to correct the Collegium System in India?

The law commission in its 214 report on the proposal for reconsideration of judges‘ cases 1, 2,3 recommend two solutions
  • To seek the reconsideration of the three judgments before the Supreme Court.
  • An Act to restore the preeminence of the Chief Justice of India and the power of the Executive to make appointments
Suggestions for Collegium System
Possible suggestions for improvement in Collegium System:
  • Removal of disparity in retirement age of HC (62 years) and SC (65 years) judges.
  • Make it inclusive i.e. there should be an advisory body consisting of eminent jurists, eminent lawyers and judges to scrutinize the candidates for appointment and the Collegium System will interview only the candidates recommended by the advisory body.
  • Selection criteria should be well defined as only minimum qualification is defined in the constitution. Therefore, more comprehensive and defined qualities and abilities should be mentioned.
  • Application must be processed. So that interested candidates can apply for it.
  • Women, OBCs, SCs, Saints and Minorities should be represented.
  • There should be some cooling off period (say 2-3 years) for appointment of retired judges by Govt. Because early recruitment may cause undue prejudice to the government.
  • The principle of greater accountability, transparency and checks and balances should also apply to the judiciary. Judiciary can also come under RTI Act.

Opinions of legal experts
Former Allahabad High Court Chief Justice Govind Mathur told India Today that he too is a critic of the Collegium System. However, he added that the law of the day for the appointment of judges to constitutional courts has been . down by the Supreme Court in the case of other judges, and as per Article 141 of our Constitution, it is binding on everyone.

The Collegium System though ensures the independence of the judiciary does not provide a clear procedure for the appointment of the higher judiciary, which is very important as they are the guardian of the constitution and thus the said system is attacked for lack of transparency. On the one hand, if the independence of the judiciary is to be ensured then it is very important that the existing system overcomes such flaws and develops a strong system to ensure that public confidence in the judicial system is not lost.

Written By: Rajita Bhandari

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