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Collegium System

Chahal's Gyan Ki Baat

 

INDEX

REFERENCE WITH UPSC-CSE SYLLABUS

WHY IN NEWS

ABOUT COLLEGIUM SYSTEM

COLLEGIUM SYSTEM CONSIST OF

GOVERNMENT ROLE

CONSTITUTIONAL PROVISION

EVOLUTION OF COLLEGIUM SYSTEM

  • FIRST JUDGES CASE
  • SECOND JUDGES CASE
  • THIRD JUDGES CASE

CHALLENGES

CONCLUSION

EXPECTED PRELIMS QUESTIONS

EXPECTED MAINS QUESTION

REFERENCE WITH UPSC-CSE SYLLABUS

  • General Studies-II
  • Structure, Organization and Functioning of the Executive and the Judiciary—Ministries and Departments of the Government; Pressure Groups and Formal/Informal Associations and their Role in the Polity.

 

WHY IN NEWS

  • All nine names recommended by the Supreme Court Collegium for appointment to the top court, the Centre government has approved.

ABOUT COLLEGIUM SYSTEM

  • A system of transfer and appointment of judges, where judges appoint judges.
  • Through judgments of the Supreme Court it has evolved, in the so-called Judges Cases and not by an Act of Parliament or by a provision of the Constitution.

COLLEGIUM SYSTEM CONSIST OF

  • The Chief Justice of India as head and four other senior most judges of the court, the Supreme Court collegium is made up.
  • The Chief Justice of high court as head and four other senior most judges of the court, the High Court collegium is made up.
  • Only after approval by the CJI and the Supreme Court collegium, names suggested for appointment by a High Court collegium reaches the government
  • Through the collegium system, judges of the higher judiciary are appointed.

GOVERNMENT ROLE

  • After names have been decided by the collegium, the government has a role to play.
  • If a lawyer is to be elevated as a judge in a High Court or the Supreme Court, government’s role is in getting an inquiry conducted by the Intelligence Bureau (IB).
  • Regarding the collegium’s choices, government can also raise objections and seek clarifications.
  • But the government is bound, under Constitution Bench judgments, to appoint them as judges, if the collegium re send the same names.

CONSTITUTIONAL PROVISION

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

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.

Article 217 says:

  • 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.

EVOLUTION OF COLLEGIUM SYSTEM

  • The Judges Cases is where the origin of the collegium system can be seen.
  • Through various interpretations of relevant constitutional provisions by the Supreme Court in the Judges Cases, the collegium came into existence.

FIRST JUDGES CASE

  • 1981, S P Gupta Vs Union of India, by a majority judgment the Supreme Court held that in the Constitution the idea of primacy of the Chief Justice of India was not really to be found.
  • It held that the suggestion for appointment to a High Court can originate from any of the constitutional functionaries mentioned in Article 217 and not essentially from the Chief Justice of the High Court.
  • The term consultation used in Articles 124 and 217 was not concurrence the Constitution Bench said.
  • Which means that President Decision was not bound to be in concurrence with all of the functionaries, although the President will consult these functionaries.
  • In favour of the executive, this judgment tilted the balance of power in appointments of judges of High Courts.
  • For the next 12 years, this condition prevailed.

SECOND JUDGES CASE

  • In 1993 the Supreme Court Advocates-on-Record Association Vs Union of India, the decision in S P Gupta was overruled by a nine-judge Constitution Bench.
  • A definite process called Collegium System for the appointment and transfer of judges in the higher judiciary was created.
  • In the petition filed by the National Lawyers’ Campaign for Judicial Transparency and Reforms, it was this judgment that was required to be reviewed.
  • It also said that the court should protect the integrity and safeguard the independence of the judiciary.
  • The majority verdict in the Second Judges Case accorded primacy to the CJI in matters of appointment and transfers.
  • The term consultation would not reduce the primary role of the CJI in judicial appointments.
  • The executive cannot have an equal say in the matter, the role of the CJI is primal in nature because this being a topic within the judicial family.
  • Indiscipline would grow in the judiciary, if executive have an equal role.
  • The recommendation should be made by the CJI in consultation with his two senior most colleagues, and that such recommendation should normally be given effect to by the executive.
  • The executive can ask the collegium to review the matter if it had an objection to the name recommended, and if on review the collegium repeated the recommendation, the executive has to make the appointment.

THIRD JUDGES CASE

  • President K R Narayanan in 1998, delivered a Presidential Mention to the Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution (advisory jurisdiction).
  • The question was
      • whether the sole opinion of CJI could by itself establish a consultation
      • Consultation required consultation with a number of judges in forming the CJI’s opinion.
  • For the working of the coram for appointments and transfers the Supreme Court laid down guidelines

This views placed were

  • By the CJI and his four senior most colleagues, instead of two, the recommendation should be made.
  • Supreme Court judges should also be consulted who hailed from the High Court for which the proposed name came.
  • The CJI should not send the recommendation to the government, even if two judges gave an adverse opinion

CHALLENGES

  • Battle between the judiciary and the executive in appointment.
  • Appointment in judiciary in slow pace.
  • Nepotism is increasing.
  • Lack of transparency.

CONCLUSION

  • To solve this issue of collegium system government tried to bring National Judicial Appointments Commission (NJAC).
  • But a five-judge Constitution Bench in 2015 declared it as unconstitutional.
  • The essence of democracy lies in its independence, transparency, accountability, integrity of institutions.
  • Any institution where nepotism is favoured over talent its downfall is guaranteed and it can be seen in judiciary where cases are pending, justice is denied and nepotism has played some role in it.
  • An independent body for the whole process is required so that judiciary can act independence not exclusively or else it will hurt coming generation faith in judiciary.
  • Without transparency justice is illusion.

EXPECTED PRELIMS QUESTIONS

Q1. Consider the following statement regarding Collegium System

  1. It is a system of transfer and appointment of judges, where prime minister appoints judge.
  2. Through judgments of the Supreme Court it has evolved, in the so-called Judges Cases and not by an Act of Parliament or by a provision of the Constitution.
  3. Through the collegium system, only judges of the district court are appointed.

Which of the following statement is correct?

(1) a only

(2) b only

(3) a and c

(4) All of the above

SOLUTION

STATEMENT A is incorrect because it is a system of transfer and appointment of judges, where judges appoint judges.

STATEMENT B is correct because through judgments of the Supreme Court it has evolved, in the so-called Judges Cases and not by an Act of Parliament or by a provision of the Constitution.

STATEMENT C is incorrect because through the collegium system, judges of the judiciary are appointed.

Q2. Which of the following are true

  1. 1990, S P Gupta Vs Union of India, by a majority judgment the Supreme Court held that in the Constitution the idea of primacy of the Chief Justice of India was not really to be found.
  2. Some experts says appointment in judiciary in slow pace due to collegium system.

Which of the following statement is correct?

  1. a only
  2. b only
  3. Both a and b
  4. Neither a nor b

SOLUTION

STATEMENT A is incorrect because 1981, S P Gupta Vs Union of India, by a majority judgment the Supreme Court held that in the Constitution the idea of primacy of the Chief Justice of India was not really to be found.

STATEMENT B is correct because some experts says appointment in judiciary in slow pace due to collegium system.

Q3. Famous “Judges Cases” is related to which part of judiciary  

(1) Fundamental Duty

(2) Fundamental Rights

(3) Appointment of Judges

(4) Judicial Review

SOLUTION

A system of transfer and appointment of judges, where judges appoint judges is called collegium system.

Through judgments of the Supreme Court it has evolved, in the so-called Judges Cases and not by an Act of Parliament or by a provision of the Constitution.

EXPECTED MAINS QUESTION

Q1. Discuss the relevance of collegium in appointment of judges in judiciary and challenges associated with it giving suitable examples.

Sources used:

The Hindu,The Indian Express, British Broadcasting Corporation News, Press Trust of India, Business Standard, The Economic Times