Introduction to Collegium System

The judiciary plays a crucial role in the governance of a nation like India, serving as the guardian of the Constitution and protector of fundamental rights. Its independence ensures that justice is administered fairly, without external influence or pressure from the executive or legislative branches. This separation of powers is vital for maintaining the rule of law and upholding democratic values. An independent judiciary acts as a check against potential abuses of power, safeguarding citizens' liberties.

The key aspect of this independence lies in the appointment process of judges. Transparent and merit-based selection minimizes political influence, fostering impartiality. When judges are appointed based on qualifications rather than political affiliations, public trust in the judicial system increases. Moreover, an independent judiciary acts as a check on legislative and executive powers, protecting citizens' rights and liberties. Ultimately, a robust appointment process is essential for maintaining judicial integrity, thereby reinforcing the foundation of democratic governance and societal stability.

In the literal sense, as per Cambridge Dictionary, collegium means ―an organization for people who have similar interests or who do similar work.‖ The Collegium System is a unique mechanism in India responsible for the appointment and transfer of judges to the Supreme Court and High Courts. Collegium has the exclusive authority in the appointment and transfer of

Judges of the higher judiciary and the role of government is typically passive due to restrictive action on the names of judges recommended by the collegiums.

It evolved through a series of judicial interpretations and is not mentioned explicitly in the Indian Constitution. While it upholds judicial independence, the Collegium system has also faced criticisms for its opacity and lack of accountability.

The SC collegium is headed by the CJI (Chief Justice of India) and comprises four senior-most Supreme Court judges. On the other hands, a High Court collegium is led by the incumbent Chief Justice of such High Court and two other senior most judges of that court. This body is vested with power to recommend names for appointments and transfers within such High Court.

Constitutional Provisions As To Collegium System

Though the concept of collegiums system is not expressly mentioned in any provision of the Constitution of India, but the genesis of this system is somewhat deep rooted in various provisions relating to appointment and transfer of Judges of Supreme Court and High Court provided under the constitution.

Such provisions are following:

1. Article 124(2) deals with the appointment of judges of the Supreme Court. It provides that every Supreme Court judge 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 that purpose and shall hold office until he attains the age of sixty-five years.
   The proviso of Article 124(2) states that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
2. Article 217: Deals with the appointment of High Court judges. It provides that every judge of High Court shall be appointed by the President by warrant under his hand and seal, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years.
3. Article 222: Deals with the power of the President to transfer High Court judges. It provides that the President may transfer a Judge from one High Court to any other High Court.

Evolution Of Collegium System In Indian Jurisprudence

Position before 1st Judges Case (1950-1980)

• The Indian Constitution was approved on January 26, 1950. The Chief Justice of India (CJI) was chosen by the President, and Supreme Court judges were appointed after consulting the CJI. A convention was established for selecting the senior-most Supreme Court justice.
• In 1964, this convention broke when PM Nehru appointed Justice Gajendragadkar as CJI, superseding Justice Imam, who was seriously ill.
• Until 1973, the process was largely unchallenged. However, in 1973, AN Ray was appointed CJI, superseding three senior-most judges: J.M. Shelat, K.S. Hegde, and A.N. Grover, breaking tradition.
• Following Ray J's retirement, Justice Beg was appointed as CJI, superseding Justice Khanna, likely as retaliation for his dissent in the ADM Jabalpur case.
• In both cases, the government chose the Chief Justice based on self-interest, ignoring seniority.
   

First Judges Case (1981)

• The S.P. Gupta case (First Judges Case) questioned whether "consultation" under Article 124 meant "concurrence".
• The Supreme Court ruled that consultation did not mean concurrence; the CJI's opinion was not binding on the President.
• Judges could be transferred against their will.
• This gave more power to the Executive over judicial appointments, raising concerns about judicial independence, and this situation persisted from 1982 to 1993.
   

Second Judges Case (1993)

• In 1993, the Supreme Court Advocates-on-Record Association filed a petition.
• The Nine-Judge Bench overruled the First Judges Case.
• The Court held that "consultation" means "concurrence" — making the CJI's recommendations binding on the President.
• The appointment process must be integrated, participative, and consultative to select the best candidate.
• The Collegium System evolved: the CJI must consult two senior-most judges before making recommendations.
• Vacancies must be filled by initiating the process through the CJI for Supreme Court and respective Chief Justices for High Courts.
• Senior-most judge should be appointed as CJI.
   

Third Judges Case (1998)

• In 1998, a Presidential Reference under Article 143 reaffirmed the 1993 decision with minor modifications.
• The Collegium was expanded: the CJI plus four senior-most judges now make recommendations for Supreme Court appointments.
• Recommendations are binding on the President.
• If CJI is near retirement, the next senior judge likely to become CJI must be included in the Collegium.
• If CJI disagrees with a nominee, the nominee cannot be appointed (giving a veto power to CJI).
• For High Court appointments, the CJI consults only two senior-most judges.
   

Fourth Judges Case (NJAC Case, 2015)

• The NJAC Act, 2014 attempted to replace the Collegium system by creating a National Judicial Appointments Commission (NJAC).
• Constitutional validity of NJAC and the Ninety-Ninth Amendment was challenged.
• The Supreme Court (4:1 majority) struck down NJAC as unconstitutional, reinstating the Collegium system.
• The Court held that judicial appointments are integral to judicial independence — a part of the Constitution's basic structure.
• Justice Chelameswar dissented, arguing that primacy of judiciary opinion is not the only way to maintain independence.
   

The Current Procedure

• For CJI:
  • The President appoints the CJI based on the outgoing CJI's recommendation.
  • Seniority is strictly followed post-1970s controversy.
• For SC Judges:
  • The CJI initiates proposals after consulting Collegium members and senior-most judge from the candidate's High Court.
  • Consultation must be recorded in writing.
  • The Law Minister forwards the Collegium's recommendation to the Prime Minister to advise the President.
• For Chief Justice of High Courts:
  • The policy is to appoint Chief Justices from outside the respective State.
  • The Collegium makes the elevation decision.
• For High Court Judges:
  • The CJI and two senior-most judges make recommendations.
  • The outgoing Chief Justice of the High Court initiates the proposal in consultation with two senior-most colleagues.
  • The Chief Minister advises the Governor to forward the recommendation to the Union Law Minister.

Merits, Limitations And Suggested Reforms In Collegium System

Merits of Collegium System

• Judicial Independence: The collegium system ensures judicial independence by keeping the process of judicial appointments free from executive (separation of judiciary from executive under Article 50) or legislative interference. This autonomy safeguards the judiciary's ability to act as a counter majoritarian institution, protecting constitutional values and fundamental rights. Recent rulings, such as the SC's verdict on the Electoral Bonds, underscore the importance of a judiciary that is insulated from political pressures. As per the Fourth Judges Case (2015), the collegium's primacy is integral to maintaining the judiciary's autonomy, a key feature of the Constitution's basic structure.
• Expertise-Driven Selection: The collegium system ensures that judges, rather than politicians or bureaucrats, select appointees, promoting meritocracy and judicial competence. This peer-driven selection process leverages the experience of senior judges to identify candidates with judicial acumen and integrity. For instance, the inclusion of specialists in constitutional or commercial law strengthens the judiciary's ability to address complex legal challenges.
• Insulation from Populism: The collegium system acts as a bulwark against populism by ensuring judicial appointments are not swayed by transient public pressures. For instance, the SC's proactive stance on environmental protection (e.g., banning firecrackers in Delhi) or upholding individual freedoms (e.g., Puttaswamy Case on privacy) demonstrates this impartiality. These cases reaffirm the judiciary's critical role in protecting constitutional democracy.
• Flexibility and Responsiveness: The collegium system, with its informal structure, allows flexibility to adapt to emerging judicial needs and challenges. Recent decisions to interview High Court candidates and avoid nepotism demonstrate a willingness to address criticisms and enhance the process's credibility. This dynamic approach has resulted in the appointment of judges with significant trial court experience, addressing long-standing gaps in judicial diversity. This adaptability ensures that the judiciary evolves to meet societal expectations.

Limitations of Collegium System

• Exclusion of Executive: The complete exclusion of the executive from the judicial appointment process created a system where a few judges appoint the rest in complete secrecy, leading to lack of accountability and potential wrong choices.
• Chances of Favouritism and Nepotism: Without specific criteria for selecting the CJI, the system opens wide scope for nepotism and non-transparency, harmful to law and order regulation.
• Against the Principle of Checks and Balances: The collegium system violates the principle of checks and balances by concentrating immense power in the judiciary without adequate control mechanisms.
• Close-Door Mechanism: The collegium operates without an official secretariat, public information, or official minutes, leading to opacity in its functioning.
• Misuse of Power: Judiciary's immense power in appointing judges can lead to misuse due to lack of external checks.
• Inequitable Representation of Backward and Minority Communities: Data shows poor representation of OBCs, SCs, and STs in judicial appointments, with no reservation framework to ensure diversity.
• Lack of Representation of Women: Only 13% of High Court judges and a small number in the Supreme Court are women, reflecting a gender gap in judiciary appointments.

Suggested Reforms in Collegium System

• Codification of Collegium Procedures: Formalizing collegium functioning with clear guidelines on candidate selection and timelines to bring transparency and accountability.
• Enhancing Diversity in Appointments: Introducing affirmative action to ensure better representation of women and marginalized communities in the judiciary.
• Greater Transparency in Collegium Decisions: Publishing records of collegium discussions and reasons for decisions to build public trust and reduce allegations of favoritism.
• Performance-Based Assessments: Merit-based appointments through evaluation of candidates' judicial performance, integrity, and public trustworthiness.
• Leveraging Technology for Efficiency: Using AI tools to manage candidate data and judicial vacancies to ensure objective evaluations and efficient decision-making.

Conclusion
The Collegium System represents an attempt to secure judicial independence by giving the judiciary primacy in its appointments. While it plays a pivotal role in maintaining the autonomy of the judiciary, its shortcomings in transparency and accountability remain a cause for concern. Reforming the system without compromising the independence of the judiciary is the need of the hour. Reforms like codifying procedures, introducing enforceable timelines, and enhancing diversity could address these issues. A balance between judicial autonomy and accountability remains essential for the system's evolution. Ultimately, a more transparent, efficient, and inclusive approach can strengthen the judiciary and restore public trust.

End-Notes:

• ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207
• S.P. Gupta vs. Union of India, 1982 2 S.C.R. 365
• 1993 (4) SCC 441
• In Re Presidential Reference, AIR 1999 SC 1
• Supreme Court Advocates-on-Record Association v. Union of India, MANU/SC/01183/2015