Sunday, 17 July 2022

Collegium System Of Appointment

 This article deals with the methods of appointment of judges in the Judiciary. The appointment of judges

is an important aspect of judicial independence which requires that in administering justice judges

should be free from all sorts of direct or indirect influence of political or non political bodies. The

independence for judiciary is very important so that the judges can be impartial and perform their

duties effectively and without any sort of fear and favour.


The freedom of judges has a close relationship with judicial appointment as the appointment of Judge

by the head of the state is followed in most of the countries of the world. Appointment by the head of

the state with the consultation of the Lord Chancellor was essentially the British method which was

adopted in the Indian Constitution provided under Article 124 of Indian Constitution states that:

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 Court 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.


According to this Article, the Judge should be appointed by the President with the consultation of Chief

Justice of India and the senior Judges of the Supreme Court. The reason for the consultation with the

Chief Justice of India and the Judges of the Supreme Court is that they are well qualified by reason of

their long tenure. But in the case Supreme Court Advocates-On-Record Association V. Union of India,

popularly known as THREE JUDGES CASE the concept of collegium system was evolved.


This article includes the concept of collegium system, its origin, advantages and the disadvantages, what

steps were taken to demolish this system and the solution. In short this paper critically analysis the

appointment of the Supreme Court Judges. Openness and transparency in making appointments

essentially depend on the mechanisms for appointment of judges.


The mechanisms for judicial appointment plays an important role in selecting the persons having the

professional skills and qualities that are required for judges in an independent judiciary. This paper seeks

to examine the nature of the mechanisms for judicial appointment which exist around the world. Its

main purpose is to analysis how far the existing mechanisms for judicial appointment are effective in

maintaining judicial independence and public confidence in the judiciary.


Origin Of The Collegium System:

The word Collegium is nowhere mentioned in the Constitution, it has come in force as per Judicial

Pronouncement. The origin of the concept for establishment of the system may be traced by the

recommendations of the Bar Council of India made on 17 October 1981, during a national seminar of the


lawyers at Ahmedabad. It was recommended that there should be a collegium system for the

appointment of the Supreme Court Judges by the following authorities:

The Chief Justice of India

Five senior Judges of the Supreme Court

Two representatives who would be representing the Bar Council of India and the Supreme Court Bar

Association.

The recommendation of such a Collegium system should be binding on the President though he can say

for reconsideration on certain grounds.


Later on, 30 December 1981, Bhagwati Judge of the Supreme Court focused on the necessity of

establishing collegium system in India in the case S.P. Gupta v Union of India. In elaborating on the

meaning of the word consultation, Bhagwati J endorsed the views of Krishna Iyer J expressed in Union of

India v Sankalchang Himmatlal Sheth that ‘We agree with what Krishna Iyer, J. said in Sankalchan Sheth

Case that:


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Collegium System in India

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This article deals with the methods of appointment of judges in the Judiciary. The appointment of judges

is an important aspect of judicial independence which requires that in administering justice judges

should be free from all sorts of direct or indirect influence of political or non political bodies. The

independence for judiciary is very important so that the judges can be impartial and perform their

duties effectively and without any sort of fear and favour.


The freedom of judges has a close relationship with judicial appointment as the appointment of Judge

by the head of the state is followed in most of the countries of the world. Appointment by the head of

the state with the consultation of the Lord Chancellor was essentially the British method which was

adopted in the Indian Constitution provided under Article 124 of Indian Constitution states that:

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 Court 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.


According to this Article, the Judge should be appointed by the President with the consultation of Chief

Justice of India and the senior Judges of the Supreme Court. The reason for the consultation with the

Chief Justice of India and the Judges of the Supreme Court is that they are well qualified by reason of

their long tenure. But in the case Supreme Court Advocates-On-Record Association V. Union of India,

popularly known as THREE JUDGES CASE the concept of collegium system was evolved.


This article includes the concept of collegium system, its origin, advantages and the disadvantages, what

steps were taken to demolish this system and the solution. In short this paper critically analysis the

appointment of the Supreme Court Judges. Openness and transparency in making appointments

essentially depend on the mechanisms for appointment of judges.


The mechanisms for judicial appointment plays an important role in selecting the persons having the

professional skills and qualities that are required for judges in an independent judiciary. This paper seeks

to examine the nature of the mechanisms for judicial appointment which exist around the world. Its

main purpose is to analysis how far the existing mechanisms for judicial appointment are effective in

maintaining judicial independence and public confidence in the judiciary.


Origin Of The Collegium System:

The word Collegium is nowhere mentioned in the Constitution, it has come in force as per Judicial

Pronouncement. The origin of the concept for establishment of the system may be traced by the

recommendations of the Bar Council of India made on 17 October 1981, during a national seminar of the

lawyers at Ahmedabad. It was recommended that there should be a collegium system for the

appointment of the Supreme Court Judges by the following authorities:

The Chief Justice of India

Five senior Judges of the Supreme Court

Two representatives who would be representing the Bar Council of India and the Supreme Court Bar

Association.

The recommendation of such a Collegium system should be binding on the President though he can say

for reconsideration on certain grounds.


Later on, 30 December 1981, Bhagwati Judge of the Supreme Court focused on the necessity of

establishing collegium system in India in the case S.P. Gupta v Union of India. In elaborating on the


meaning of the word consultation, Bhagwati J endorsed the views of Krishna Iyer J expressed in Union of

India v Sankalchang Himmatlal Sheth that ‘We agree with what Krishna Iyer, J. said in Sankalchan Sheth

Case that:


Consultation is different from consentaneity. They may discuss but may disagree; they confer but may

not concur’. This is reminiscent of the views of Dixon CJ of Canada who had said, ‘[The Prime Minister

and the Minister of Justice with whom the final choice on appointment rests] feel free to consult me, I

feel free to give views which they are free to take or not to take’.


However, Bhagwati J in the First Judges’ Case expressed his dissatisfaction with the existing ‘mode of

appointment of judges in India in which the authority to select judges has exclusively been vested ‘in a

single individual’ (the President) whose choice ‘may be incorrect or inadequate’ and ‘may also

sometimes be imperceptibly influenced by extraneous or irrelevant considerations.’


Therefore, he considered it unwise to entrust power particularly to make crucial and sensitive

appointments, such as judicial appointments, to single individual (the President) without putting checks

and controls on the exercise of such a power. Accordingly, he suggested that:

There must be a Collegium to make recommendation to the President in regard to appointment of a

Supreme Court or High Court Judge. The recommending authority should be more broad-based and

there should be consultation with wider interests.


If the Collegium is composed of persons who are expected to have knowledge of the persons who may

be fit for appointment on the Bench and of qualities required for appointment and this last requirement

is absolutely essential- it would go a long way towards securing the right kind of Judges, who would be

truly independent.


Establishment Of Collegium System With Judicial Pronouncement:

The Collegium of judges, as proposed by Bhagwati J, could only be established in India through the

passing of an amendment to the provisions of Articles 124(2) and 217(1) of the Constitution. But in

1993, a majority of Nine-Judge Constitutional Bench of the Supreme Court in the Second Judges’ Case

and in 1998, the unanimous opinion of the nine- Judge Constitutional Bench of the Supreme Court in the

Third Judges’ Case did accomplish the task of setting up of the collegium of judges.


The composition of the collegiums as contemplated by Bhagwati J in the First Judges’ Case that it ‘should

be more broad- based and there should be consultation with wider interests’ was completely ignored;

the membership of the Collegium was kept narrow-based (i.e. confined only to the judges of the

superior courts).


The Second Judges Case, 1993

In the Second Judge case, J. S. Verma overruled the majority view in the First Judges Case, giving primacy

to President in the matter of appointment of Judges to superior courts. Verma J held that the opinion

given by the CJI in the consultative process had to be formed taking into account the views of the two

senior most judges of the Supreme Court. This would ensure that the opinion of the Chief Justice of

India was not merely his individual opinion, but an opinion formed collectively by a body of men at the

apex level in the judiciary.


He also contended that:

The Chief Justice of India is expected to take into account the views of his colleagues in the Supreme

Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of

India may also ascertain the views of one or more senior Judges of that High Court whose opinion,

according to the Chief Justice of India, is likely to be significant in the formation of his opinion.


The great weight should be given to the opinion of CJI and senior most Judges of Supreme Court. The

primacy should be given to CJI in the matters accordance with the appointment of Judges of Supreme

Court. He further elaborated the situations when non-appointment was permitted and justified.


For example:

If the final opinion of the Chief Justice of India was contrary to the opinion of the senior judges

consulted by the Chief Justice of India and the senior judges were of the view that the recommended

was unsuitable for stated reasons, which were accepted by the President, then the non-appointment of

the candidate recommended by the Chief Justice of India would be permissible. Similarly, when the

recommendation was for appointment to a High Court, and the opinion of the Chief Justice of the High

Court conflicted with that of the Chief Justice of India, the non-appointment, for valid reasons to be

recorded and communicated to the Chief Justice of India, would be permissible.


Thus, the President’s role as the appointing authority is reduced to the minimum. The word

‘consultation,’ used in Articles 124(2) and 217(1) of the Constitution, tends to be interpreted as

‘concurrence’ observing that concurrence of the Chief Justice of India, who was best equipped to assess

the true worth of the candidates for adjudging their suitability, was needed for any higher judicial

appointment except certain cases for strong cogent reasons disclosed to the Chief Justice by the


executive and in the absence of consensus, his opinion, formed collectively after taking into account the

views of senior colleagues, would hold primacy. This procedure devised by Justice Verma for the

appointment of judges of superior courts in India was, according to him, the best method, in the

‘constitutional scheme’.

Steps Taken By The Govt

It is ironic that Verma J, the author of the leading judgment in the Second Judges’ Case, which gave a

tentative shape to the Collegium system of appointment of judges in 1993, after a passage of time found

faults in the working of the system and went to the extent of saying that: ‘judicial appointments have

become judicial disappointments,’ and that ‘working of the judgment now for some time is raising

serious questions, which cannot be called unreasonable; therefore some kind of rethinking is necessary.’


Thus, Verma J felt the necessity of introducing an improvement in the Collegium system but stopped

short of suggesting replacement of the mechanism. The existing political dissatisfaction with the present

system of appointment would be evident from the facts that most of the political parties and groups,

including the National Democratic Alliance, the Congress (I), and the left parties had promised in 1999

Lok Sabha election manifestos to establish a National Judicial Commission in place of the Collegium.


After ten years of the establishment of the Collegium system in 2003, the Government of the National

Democratic Alliance made an attempt to replace the system of the Collegium with a National Judicial

Commission (consisting of three ex-officio judicial members and two executive appointees) through the

presentation of the Constitution (Ninety-Eighth Amendment) Bill before the Lok Sabha – the Lower

House of the Parliament.


The Bill, which was before a Standing Committee, lapsed because of the dissolution of the Lok Sabha.

Later in its Report of 2007, the Parliamentary Standing Committee on Law and Justice stated that after

the 1993 judgment in the Second Judges’ Case, the role of the executive in the appointment of judges

has almost been abolished and, as such, recommended that both executive and judiciary should be

involved in the process of appointment, with the executive having primacy.


It also suggested that the empowered committee and the National Judicial Council could make the final

recommendation instead of the Collegium. The Government accepted the Parliamentary Standing

Committee’s recommendation to do away with the Collegium of judges.


However, in order to ensure greater transparency and role of the executive in the appointment of

judges of the Supreme Court and the 21 High Courts, the Union Law Ministry drafted a constitution

amendment bill to replace the existing Collegium system with a two-tier system of National Judicial

Commission- one for the appointment of judges to the Supreme Court and another for appointment of

judges to the High Courts.


But in July 2012, the Law Ministry introduced changes in the Bill to replace the proposed two-tier

National Judicial Commission system with a single-tier. At the same time, a new provision has been

incorporated into the Bill providing for the attendance of the relevant Chief Minister in the meeting of

the Commission if his input is considered necessary for the appointment of High Court judges.


This provision is aimed at doing away with the time consuming practice of seeking the Chief Minister’s

opinion regarding the appointment of High Court judges in file. Although the government has been

drafting and redrafting the Bill for nearly two years, it does not have the requisite majority in the

Parliament to get the Bill passed without the support of the opposition party, the BJP, which has, in the

meantime, expressed its reluctance to support the Bill.

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