Evolution of Collegium System in India

INTRODUCTION

There is no mention of the word 'collegium' in the Constitution of India. Its literal meaning is 'an advisory board or an administrative board.' Collegium is a system for the appointment and transfer of judges. It consists of the Chief Justice of India and the other four senior-most judges of the Supreme Court. Presently, the Collegium system is often criticized for the lack of transparency and nepotism. Thus, we must look at the history and evolution of this system.

Relevant provisions of the Constitution:

According to the Constitution of India, judges of the Supreme Court shall be appointed by the President of India in consultation with the Chief Justice of India and other judges of Supreme Court and High Courts as the President may deem fit.

Judges of High Court are to be appointed by the President of India in consultation with Chief Justice of India and the concerned Governor and the Chief Justice of High Court.

Controversy

The controversy started after the verdict of Kesavananda Bharati case[1] in 1973. Justice A.N. Ray, who was tat number 4 in terms of seniority, was appointed the CJI by the Indira Gandhi Government on 25th April 1973, thereby moving away from the convention of appointment of a senior-most judge as C.J.I. Justice A.N. Ray assented to the stance of the govt., not only in Kesavananada, but in Bank Nationalisation and Privy purse cases too.

Later on, in 1977, Justice Hans Raj Khanna, who was the senior-most puisne judge, had to sacrifice his Chieefship for standing strong with the humanist view in A.D.M Jabalpur V. Shivkant Shukla (1976), against the atrocities inflicted during the Emergency imposed by the Indira Govt.

The appointment of judges per se, has undergone several changes during the last 4 decades:

First Judges Case[2] (4:3)

In this case the court considered interpretation of the word 'consultation' as used under Article 124 (2) & Article 217 (1).

It was held that consultation does not mean concurrence, and in case of disagreement, the ultimate authority would be of the Union Government and not the Chief Justice of India.

It was also held that judges may be transferred from one high court to another high court, but it should be done in public interest and not as a punishment.

Thus this judgment gave all the powers in the hand of executives.

Second Judges Case[3] (7:2)

The judgment of the first judges case was considered here. It was held that in case of conflict the opinion of the Chief justice of India will have the primacy & will be determinative in the matter.

It was the first case in which the collegium system was talked about in our country.

It was held that for the appointment of Supreme Court & High Court Judges, the Chief justice of India would consult with two senior judges of the supreme court.

And it was also held that in the transfer of the judges of High Court the Judiciary would have the final say.

Clearly, a balance between the executive and Judiciary was still required, as in this case judiciary gave all the power regarding the appointment and transfer of judges to itself.

Third Judges Case[4] (9:0)

In 1998 a presidential reference wall stone by President K R Narayan for the interpretation of the word ‘consultation’ in article 217 of the Constitution. The issue was whether the consultation with C.J.I. would suffice or the other judges of the Supreme Court shall also be consulted?

The Supreme Court held that the word consultation means consultation with C.J.I. along with the other judges of the Supreme Court.

The Supreme Court stated that there should be a collegium consisting of C.J.I. & other four senior most judges.

In this way, Judiciary strengthened itself & since then we are following this system.

Criticism of the collegium system

It has always been criticized for lack of transparency. In this system judges appoint themselves, which is against the Rule of Law. This is the system which have been evolved by the Judiciary for the Judiciary. Government may object to the appointments, but still, the ultimate authority remains with the collegium.

Ninety-Ninth Constitutional Amendment (NJAC)

Keeping in mind these criticisms, the government came up with the 99th Constitutional Amendment in 2014, which replaced the collegium system with National Judicial Appointments Commission (NJAC).

This Commission comprised of-

1. C.J.I. (Chairperson)
2. Two other senior most judges of the Supreme Court.
3. Union Minister in charge of law & justice
4. Two eminent persons to be nominated by a committee consisting of Prime Minister, C.J.I. & the leader of opposition in the House of People.

This amendment provided, that if any two persons out of these four didn't agree with any appointment or transfer, then such assignment or transfer won't take place.

But within months 99th Constitutional Amendment was held unconstitutional, citing the inadequate representation of the judicial component in the commission & the independence of Judiciary. (This case is known as fourth judges case)

Conclusion

In my opinion, from the above discussion it is obvious that the prevalent system lacks transparency & gives more than necessary powers to Judiciary in appointing & transferring judges. In a democratic country, such an order cannot be considered as a healthy one & the laws should be made for this purpose. It must be kept in the mind that neither of the two organs shall be given ultimate authority & there must be a balance between executive & Judiciary. Transparent as well as independent characters of the Judiciary, are of equal importance.

[1] A.I.R. 1973 SC 1461

[2] S.P Gupta v. President of India; A.I.R. 1982 SC 149

[3] Supreme Court Advocates-on-Record Association Vs. Union of India; A.I.R. 1994 SC 268

[4] Re Presidential Reference

[Kunwar Bir Singh, a 3 rd year B.A.LL.B.(Hons.) student from University Institute of

Legal Studies, Panjab University, Chandigarh]