Context: Dismissing reports of differences with the judiciary on the process of appointment of judges in the Supreme Court and in High Courts, Union Minister of Law and Justice Kiren Rijiju on Thursday said the Collegium system will prevail, in the absence of alternative mechanisms and legislations enacted by the Parliament.
About the news
- Earlier Union Minister of Law and Justice Kiren Rijiju wrote a letter to Chief Justice of India (CJI) D.Y. Chandrachud to suggest a nominee of the Union government in the Supreme Court Collegium and a State representative in each of the High Court collegiums
- Speaking to a gathering after laying the foundation stone for a lawyers’ chamber at the Integrated Court Complex in Puducherry, the minister said that in the absence of alternative mechanisms or legislations brought in by Parliament for a new system, the Collegium system will continue but needs updation and restructuring. He also emphasized the need for cooperation between the executive, judiciary, and legislature.
Appointment of Chief Justice & Judges
- The CJI and the Judges of the SC are appointed by the President under clause (2) of Article 124 of the Constitution.
- The appointment of judges to the higher judiciary is done by the collegium system and the appointment is made by the President, with the executive head holding the power to appoint the CJI under Article 124.
- As per Memorandum of Procedure of appointment of judges appointment to the office of the Chief Justice of India should be of the seniormost Judge of the Supreme Court considered fit to hold the office.
- The Union Minister of Law, Justice and Company Affairs would, at the appropriate time, seek the recommendation of the outgoing Chief Justice of India for the appointment of the next Chief Justice of India.
- Whenever there is any doubt about the fitness of the seniormost Judge to hold the office of the Chief Justice of India, consultation with other Judges as envisaged in Article 124 (2) of the Constitution would be made for appointment of the next Chief Justice of India.
- After receipt of the recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs will put up the recommendation to the Prime Minister who will advise the President in the matter of appointment.
- This established convention was violated in 1973 and 1977 when A N Ray and M U Beg was appointed as the Chief Justice of India by superseding senior judges.
- Judges of the higher judiciary are appointed only through the collegium system
About the collegium system
- It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
- The Supreme Court collegium is headed by the Chief Justice of India and comprises four other seniormost judges of the court.
- A High Court collegium is led by its Chief Justice and four other seniormost judges of that court.
- Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
- Judges of the higher judiciary are appointed only through the collegium system — and the government has a role only after names have been decided by the collegium.
- The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
- It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
Constitutional Provisions regarding Appointment of Judges
- Judges of the Supreme Court and High Courts are appointed by the President under Articles 124(2) and 217 of the Constitution. The President is required to hold consultations with such of the judges of the Supreme Court and of the High Courts as he may deem necessary.
- 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.”
- And Article 217: “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 collegium system has its genesis in a series of judgments called “Judges Cases”. The collegium came into being through interpretations of pertinent constitutional provisions by the Supreme Court in the Judges Cases.
- First Judges Case: In S P Gupta Vs Union of India, 1981, held that the proposal for appointment to a High Court can emanate from any of the constitutional functionaries mentioned in Article 217 and not necessarily from the Chief Justice of the High Court. The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 was not “concurrence” — meaning that although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them. The judgment tilted the balance of power in appointments of judges of High Courts in favour of the executive.
- Second Judges Case: In The Supreme Court Advocates-on-Record Association Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision in S P Gupta and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary. The majority verdict accorded primacy to the CJI in matters of appointment and transfers while also ruling that the the term “consultation” would not diminish the primary role of the CJI in judicial appointments. Ushering in the collegium system, the court said that the recommendation should be made by the CJI in consultation with his two seniormost colleagues, and that such recommendation should normally be given effect to by the executive. It added that although it was open to the executive to ask the collegium to reconsider the matter if it had an objection to the name recommended, if, on reconsideration, the collegium reiterated the recommendation, the executive was bound to make the appointment.
- Third Judges Case: In 1998, President K R Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution (advisory jurisdiction). In response, the Supreme Court laid down 9 guidelines for the functioning of the coram for appointments and transfers. This opinion laid down that the recommendation should be made by the CJI and his four seniormost colleagues, instead of two. It also held that Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted. It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.
How does it discharge its functions?
- The Collegium’s functioning has been criticised for being opaque.
- Its resolutions and recommendations are hosted on the Supreme Court’s website, giving relevant information about its decisions.
- However, the nature of the deliberations and whether there are any internal differences of opinion on the suitability of a particular candidate are unknown.
- It functions mainly through the system of adopting resolutions and sending them to the Union Law Ministry for further action.
- If a proposal for appointment of a judge is returned for reconsideration, the Collegium may either drop it or reiterate it.
- When the Collegium reiterates its decision after reconsideration, it is binding on the government.
Why is Collegium system being criticised?
- Critics also argue that the system is non-transparent, since it does not involve any official mechanism or secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure. There is no public knowledge of how and when a collegium meets, and how it takes its decisions. Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.
- The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.
- The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. While politicians and actors get instant relief from courts, the common man struggles for years for justice.
About 99th Constitutional Amendment Act
- The five-judge decision invalidated the 99th Constitutional Amendment (new Article 124A, 124B, and 124C) and the accompanying Act (the National Judicial Appointments Commission Act, 2015) because of the glaring violation of the basic structure doctrine on the constitutional rule of law and independence of the judiciary.
- The NJAC also empowered the Union Minister of Law and Justice and two eminent persons from civil society (one of the eminent persons to be nominated from SC/ST/OBC/minorities or women) — a majority in the commission — to veto a recommendation, thus cancelling judicial primacy.