GS-2, Uncategorized

The collegium system

The collegium system

  • The collegium system for appointment of judges to higher judiciary only came into existence following the Supreme Court’s judgment in what is known as the Second Judges Case (1993).
Constituent assembly gave a central role to the Judiciary:
  • These issues concerning the system employed to appoint judges to the Supreme Court and the high courts are of particular salience.
  • The judiciary was regarded by the Constitution’s framers as central to the social revolution that the Constitution was meant to herald.
  • The Constituent Assembly brought such idealism to the framing of the Judicial provisions of the Constitution which is equalled only by that shown towards Fundamental Rights.
  • It saw the judiciary as critical to upholding the equality that Indians had longed for during colonial days, but had not gained.
Appointments to Judiciary – a consultative process:
  • To ensure that judges would be insulated from political influence, the Constituent Assembly agreed on a consultative process of appointing judges (where higher judges are consulted while appointing judges).
  • The Constitution vested in the President the power to both make appointments and transfer judges between high courts.
  • The President (who would act on the advice of the council of ministers) was, however, required to compulsorily consult certain authorities, including the Chief Justice of India (CJI), and, when making appointments to a high court, the chief justice of that court.
Process of appointment changed after a series of judgements:
Meaning of “consultation”:
  • There was some confusion over what this “consultation” of CJI by the President meant.
  • Does this mean just taking an opinion or does it mean “concurrence”, which would mean CJI’s advice is binding on the President?
Sankalchand Sheth case:
  • Originally, in 1977, in Sankalchand Sheth’s case, when interpreting the word “consultation,” the Supreme Court ruled that the term can never mean “concurrence”. (That is to say that President can appoint someone as judge even if the judges he is consulting do not agree.)
  • Hence, the CJI’s opinion, the court ruled, was not binding on the executive.
  • But nonetheless the executive could depart from his opinion only in exceptional circumstances, and, in such cases, its decision could well be subject to the rigours of judicial review.
  • This was a perfectly sound balance (between executive and judiciary).
First Judges Case:
  • Again, in 1981, in the First Judges Case, the court once again endorsed this interpretation, albeit partly.
Second Judges Case:
  • In 1993, in the Second Judges Case, the court overruled its earlier decisions.
  • It now held that “consultation” really meant “concurrence”, and that the CJI’s view enjoys primacy, since he is “best equipped to know and assess the worth” of candidates.
  • But, the CJI, in turn, was to formulate his opinion through a body of senior judges that the court described as the collegium.
Third Judges Case:
  • In 1998, in the Third Judges Case, the court clarified its position further.
  • It said the collegium will comprise, in the case of appointments to the Supreme Court, the CJI and his four senior-most colleagues — and, in the case of appointments to the high courts, the CJI and his two senior-most colleagues.
  • Additionally, for appointments to the high courts, the collegium must consult such other senior judges serving in the Supreme Court who had previously served as judges of the high court concerned.
No basis for collegium system:
  • Critics say that these requirements, brought in through various judgements, are not in right faith with respect to what is in the Constitution’s text.
  • Yet the court has been keen to hold on to this power.
99th Constitutional Amendment attempted to change it:
  • To change the system of appointment of judges, the Constitution was altered, through the 99th constitutional amendment.
  • It sought to replace the collegium with the National Judicial Appointments Commission — a body comprising members of the judiciary, the executive and the general public.
Court made collegium’s primacy part of basic structure:
  • The Supreme Court swiftly struck it down.
  • It ruled that the primacy of the collegium was a part of the Constitution’s basic structure, and this power could not, therefore, be removed even through a constitutional amendment.

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