A CRITICAL ANALYSIS OF COLLEGIUM SYSTEM OF THE INDIAN SUPREME COURT

ABSTRACT

Indian Judicial system occupies a prominent place for protection of democracy in India. The Indian Government, States, and Judicial Authorities must guard its citizens for protection of their Fundamental Rights. In 1993, a new mechanism of the Collegium system of The Indian Supreme Court was established to ensure democracy in India. The Collegium system aims to ensure the opinions of Chief Justice of India (CJI) and other Judges with the highest judicial integrity. However, the effectiveness of this system is sometimes questioned regarding the independence and transparency of Judicial appointments and other decisions. In order to maintain citizen's faith over Judiciary, the Collegium must protect itself against further erosion of its independence by carefully according to the Law.

Keywords: Appointment of Judges, Independence of Judiciary, National Judicial Appointments Commission, Collegium System, Diversity, Indian Supreme Court, Judicial appointments, Judiciary.

INTRODUCTION

The Collegium system was introduced in response to administrative interference in the appointments of the Judges of The Supreme Court of India. However, this system was established to protect such appointments from administrative interference. Currently, the Collegium is composed of CJI (Chief Justice of India) and 4 Other Senior Judges of the Supreme Court. The Collegium system still exists and is stronger despite of various criticisms and attempts to reform the appointment and transfer procedures[i].

COLLEGIUM SYSTEM[II]

? This is a system in which Judges are appointed and moved only by Judges.

?? This system is not established by the Parliamentary Law or Constitutional provisions. Instead, it is a system developed by the decision of the Supreme Court.

???????????? SC Collegium is headed by CJI and is made up of the Court's four highest-ranking Judges.

???????????? HC Collegium is led by the Chief Justice of the High Court and four other Chief Justices of the High Court.

?? The recommended name for appointment of the High Court Judges arrives only after the approval of the CJI of the Supreme Court through this system. ?

???????????? Government may return nominated Judges for review by the Collegium.

???????????? This system was introduced to strengthen and improve the appointment process.

NEED FOR COLLEGIUM SYSTEM

1. To separate the influence of justice from the executive and legislative powers, the Collegium system ensures fair and independent operation. Therefore, it reinforces the principle of separation of powers (No State Agency can interfere with the functioning of another State Agency) with checks and balances.

???????????2. The State is the main litigation subject in Indian courts. About 46% of the total number of outstanding cases in India belong to the Government. If the transfer of the power of judges belongs to the executive branch, then the fear of transfer will obstruct justice.

???????????3. The executive agency is not an expert or does not understand the Judge's requirements. Therefore, it is best to appoint the Judges by collegium system.

???????????4. The political vulnerability of India in which Governments managing transfers and appointments are prone to nepotism.

For example, there is much evidence that civil servants are transferred for political purposes. This is not feasible in the current Collegium system.

5. In addition, this system provides stability for Judges[iii].

EVOLUTION OF COLLEGIUM SYSTEM

1. Article 124 (2) of the Constitution of India states that Judges of the Supreme Court shall be appointed by the President. He should consult the number of Judges in the Supreme Court and the Higher Courts of the States that he deems necessary for this purpose.

???????????2. Article 217 of the Indian Constitution states that Judges of the High Court shall be appointed by the President after consultation with the Chief Justice and Governor of India. In addition, the Chief Justice of the Higher Court should also be consulted, unless he designates it himself[iv].

3. In First Judges Case (1981)[v], the Supreme Court stated that consultation under Article - 124 does not imply concurrence (unanimity). Based on this judgment, the President is not bound by CJI's recommendations.

4. In the case of the Second Judges (1993)[vi] [vii] -The Court rejected the previous decision and affirmed that the recommendations of the CJI were binding. In addition, CJI must formulate its recommendations based on a panel of Judges composed of CJI and two senior Judges from SC.

5. In the case of the Third Judge (1998)-The Court expanded the collegium to a five-member body, including CJI and the four senior Judges of the court after CJI.

6. In the Fourth Judge's Case (2015)[viii]-The SC confirms the primacy of the collegium. In addition, the Court overturned the National Judicial Appointment Commission (NJAC) Act, finding it unconstitutional. The Court held that this Act gave important powers to the Government to appoint Judges. The Court held that the Act violated judicial independence and seems to destroy the basic structure.

?? NJAC is composed of 3 judges from SC, a central law minister and 2 civil society experts.[ix]

?? If 2 members of NJAC do not accept the recommendation, NJAC will not recommend the person, which will make the appointment process more extensive.

PRESENT SCENARIO[X]

? The appointment of Judges will be formally decided by the President of India based on the recommendation of the collegium. These proposals are processed through the Legal Department.

? The system made headlines recently because two collegium judges expressed caution to CJI. The two judges opposed the proposal to promote 22 lawyers to Mumbai High Court judges. They thought the proposed people should not be appointed lacking in good faith[xi].

? In the past, the CJI also ignored the veto power of the senior Judges and appointed a Judge. Subsequently, the Judge continued to make absurd judgments about the POCSO Act[xii].

? In March 2021, the Supreme Court asked the Government to clarify the circumstances of the 55 recommendations made by Collegium to appoint judicial officers to the High Court six months to nearly a year and a half ago. The Supreme Court has repeatedly told the government that concerns about judicial vacancies in the High Court are growing.

CRITICISMS OF THE COLLEGIUM SYSTEM

1. It gives Judges great power, but it can be easily abused. The collegium system makes India the only country where Judges appoint Judges.

?2. The selection of Judges by the collegium is not democratic. Because Judges are not responsible to the people or people’s representatives, that is, executive or legislative.

???????????3. There is no formal selection procedure or written operation manual. This created ambiguity in the operation of the collegium.

???????????4. The children and nephews of former Judges or senior lawyers are often popular choices for judicial positions. Therefore, it promotes mediocrity and nepotism in justice by excluding talented people.

5. There are still late appointments. The Supreme Court last appointed a judge in September 2019 and there are currently four vacancies, which are expected to increase further this year.[xiii]

???????????6. It is inconsistent procedure i.e. Sometimes a Judge of the HC is elevated to the rank of Chief Justice of the same HC while in other cases he / she is appointed Chief Justice of another High Court.[xiv]

?7. In this system, Proactive decisions to increase transparency is turned to confidentiality. This includes the practice of revealing the reasons when an academy decision is announced.

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SUGGESTIONS

1. The Central Government must take action on the collegium's decision within a specific time and establish a framework to minimize delays. Since May 2020, many appointments in the Mumbai and Allahabad High Courts await government hearings.

???????????2. Both the Central Government and the Judiciary should stop shirking and work together to reform the appointment process. There is need to reach a consensus on the procedural memorandum. The procedure must include some important clauses, for example -

?? It must be implied an agreement between the Judiciary and the Government, which contains a set of guidelines for the appointment of high-level Judiciary.

???????????? It must be based on transparency, eligibility criteria for judicial appointments, a complaint mechanism against candidates and for assisting the collegium - a Permanent - Secretariat.

3. Currently, the collegium only issued a public statement about who was recommended. But it did not disclose who retired and for what. Therefore, the university system must return to the early practice of providing reasonable justification for its decision-making.[xv]

???????????4. In addition, the Supreme Court should publish a written manual. During appointments and transfers, the manual should be followed in letter and spirit.

???????????5. The Supreme Court will also publish the minutes of all collegium meetings in the public domain to ensure transparency and rule-based procedures.

???????????6. In addition reforming the collegium system, the quality of Judges can also be improved by implementing the All-India Judicial Service (AIJS).

CONCLUSION

In the High Courts across India there are lack of more than 400 Judges, so the appointment system needs to be improved quickly. Only when the Judicial and Administrative Departments are willing to negotiate in a citizen spirit can increase in pending cases be resolved in the future. For this reason, reforming the collegium system is a great step in the right direction.

REFERENCES

[i] https://www.thehindu.com/news/national/why-is-the-collegium-of-judges-in-the-spotlight/article29418574.ece

[ii] https://www.civilsdaily.com/news/what-is-the-collegium-system/

[iii] https://www.insightsonindia.com/2019/05/10/what-is-the-collegium-system-and-how-it-works/

[iv]https://ijariie.com/AdminUploadPdf/Collegium_System_%E2%80%93_The_Unveiled_Darkness_ijariie5835.pdf

[v] S.P. Gupta vs. Union of India; AIR 1982 SC 149

[vi] Subhash Sharma vs. Union of India; 1990 SCR Supl. (2) 433

[vii] Supreme Court Advocates on Records Association vs. Union of India; (1993)4 SCC 441, AIR 1994 SC 268

[viii] Supreme Court Advocates-on-Record-Association and Ors.vs Union of India; MANU/SC/1183/2015:(2015) 6 SCC 408

[ix] https://www.iasexpress.net/collegium-system-of-appointment-of-judges-in-supreme-court-and-high-court-upsc-ias/

[x] https://www.livelaw.in/top-stories/president-notifies-appointment-of-nine-supreme-court-judges-including-3-women-180323; live law news network - 26 Aug 2021 2:06 PM

[xi] https://samajho.com/upsc/collegium-system-in-india/

[xii] Protection of Children from Sexual Offences Act (As per which skin-to-skin contact is necessary for convicting an individual for sexual harassment under the act.)

[xiii] https://www.drishtiias.com/daily-updates/daily-news-editorials/democracy-of-the-collegium-system

[xiv] https://economictimes.indiatimes.com/topic/Supreme-Court-collegium

[xv] https://main.sci.gov.in/collegium-resolutions