COLLEGIUM SYSTEM AND ITS PROBLEMS – Detailed Analysis

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INTRODUCTION

The collegium system, a distinctive aspect of India's judiciary, has been a source of considerable discussion. Unlike a constitutionally mandated process, it emerged through judicial interpretation, empowering the Chief Justice of India and senior judges to collectivel decide on judicial appointments and transfers. While its purpose is to safeguard judicial independence, this system is criticized for its lack of transparency and accountability.

The collegium system developed through the three landmark judgements commonly known as the “First Judges Case”, “Second Judges Case” and “Third Judges Case”. A National Judicial Appointment Commission was formed by the passing of bills by both houses; however, it was struck down by the court claiming that it violated the independence of the judiciary. The collegium system in India raises concerns due to its lack of transparency and accountability in the appointment and transfer of judges, prompting a need for judicial reform. This assignment analyses the collegium system of appointment for judges from its beginning. It also talks about its inefficiencies and the way forward. This assignment explores the origin of the collegium system, its fundamental principles, and the challenges it poses to India's legal system, aiming to highlight the ongoing conversation about judicial reform and the push for a more transparent procedure in the appointment and transfer of judges.

COLLEGIUM SYSTEM AND ITS PROBLEMS

In India, the responsibility of appointing new judges and facilitating the transfer of outgoing justices is vested in the Collegium System, where the process is characterized by “judges selecting judges.”

The Collegium system in India, while not explicitly mentioned in the constitutional framework, has evolved through judicial decisions, particularly the three-judge cases. This system grants exclusive authority to judges, sidestepping democratic processes, as there are no open and transparent elections for judicial appointments. The absence of a democratic method raises concerns about accountability to the nation’s citizens. It is noteworthy that, unlike most systems or organizations in India, which are either establishe through parliamentary legislation or provisions in the constitution, the Collegium System stands as a unique arrangement.

The functioning of the collegium system in India, responsible for the appointment of judges, is mired in a range of issues that extend across transparency, fairness, diversity, and operational efficiency. These challenges not only impact the credibility of the system but also raise questions about the overall effectiveness of the judicial appointment process. The autonomy of judges is closely tied to the process of judicial appointment, a practice commonly observed across various countries worldwide. In many nations, the appointment of judges by the head of the state is a prevalent approach. The British method, which involves the head of the state making appointments in consultation with the Lord Chancellor, served as a model, and it was incorporated into the Indian Constitution through Article 12.

The collegium system emerged as a reaction from the ‘upper’ castes to the Silent Revolution, as described by scholar Christophe Jaffrelot. It seemed like a strategy to maintain control over a segment of the power structure for the ‘upper’ caste elites. The concept of collegium started in the early 1990s with the increased representation of Other Backward Classes (OBCs) and increasing political pressure.

Here the question arises why only in the 1990s the collegium system saw an upsurge, and why not in the 1960s and 70s?

It was in 1967 when Congress the then ruling party of India was fragmented. This was followed by a revolution led by Jayprakash Narayan which saw the two OBC leaders Ram Naresh Yadav and Karpoori Thakur as chief ministers of Uttar Pradesh and Bihar. They initiated the OBC Reservation in government jobs. This resulted in an increase of these groups in the legislature under the government of VP Singh. This brought uncertainty in Indian politics as no party could win the majority. This period was also called “India’s growing crisis of governability”. This gave the apprehension of weak government and policymaking.

14TH LAW COMMISSION REPORT

As early as the 14th Law Commission Report in 1958, chaired by M.C. Setalvad, India's first Attorney General, concerns were raised regarding the executive's role in appointing or rejecting judges, often contrary to the judiciary's recommendations. This led to awkward situations, as appointments were influenced by political, regional, communal, or other non-merit-based considerations, preventing the selection of the most qualified individuals. The Commission recommended enhancing the consultation process between the executive and the judiciary to address these issues.

FIRST JUDGES CASE (1981)

The First Judges Case, S.P. Gupta vs. Union of India (1981), marked a turning point in India's judicial history by addressing the power dynamics between the executive and the judiciary in appointing and transferring judges. The Supreme Court's 4-3 decision tilted towards judicial supremacy, asserting that the Chief Justice of India, guided by a collegium of senior judges, should hold a central role in these processes. This landmark judgment laid the foundation for the collegium system, significantly influencing subsequent legal developments. The system, emphasizing judicial autonomy, persists as a defining feature of India's judiciary, underscoring the collaborative role of the Chief Justice and senior judges in key appointments and transfers within the legal fraternity.

SECOND JUDGES CASE (1993)

In the social-political backdrop, the Supreme Court's 1993 ruling in the Second Judges case, establishing the collegium system, occurred. Preceding this verdict, two law ministers, P. Shiv Shankar and B. Shankaranand, both from backward castes, advocated for judges from similar backgrounds. The initiative to appoint judges from backward castes gained momentum after the 1981 First Judges case, granting the Union government authority in appointments during disagreements between the President and the CJI. The judiciary witnessed increasing debates over the appointment of judges from the SC/ST community. Supreme court advocates- on-record Association vs Union of India.

This case started with the doubt on the verdicts of the first judges’ case as a result chief justice of India formed a nine-judge bench to take into consideration two major questions-

1. Appointments of judges to the Supreme Court and the High Courts?

2. whether the fixation of the judge-strength in High Courts, was justiciable?

On October 6, 1993, the Supreme Court passed its verdict with a 7:2 majority whereby the duty of appointment of judges was transferred from the Executive to the Chief Justice of India based on a collective decision by the collegium. Commonly called second Judges Case.

THIRD JUDGES CASE (1998)

Came up with doubt over the verdict of the second judges’ case and the interpretation of Article 143 which states the role of the president in appointing chief justices. The case emphasized an integrated, participatory consultative process. CJI can form his plan after consulting a body of judges.

The "Third Judges Case" of 1998 emerged against the backdrop of uncertainty stemming from the verdict of the "Second Judges Case" and concerns regarding the interpretation of Article 143, specifically addressing the President's role in appointing Chief Justices in India. This legal milestone placed a spotlight on the need for clarity in the appointment process. In a departure from previous approaches, the Third Judges Case highlighted the importance of an integrated, participatory, and consultative process. It delineated that the Chief Justice of India (CJI) could formulate a proposal for judicial appointments after consulting a collegium of judges. This emphasis on a collaborative approach aimed to foster transparency and inclusivity in the decision-making process, further shaping the trajectory of judicial appointments in the Indian legal landscape.

NATIONAL JUDICIAL APPOINTMENT COMMISSION

The Collegium System encountered extensive criticism, both from the government and civil society, primarily stemming from its perceived lack of transparency and accountability. In response to these concerns, the 99th Constitutional Amendment Act of 2014 was enacted, introducing the National Judicial Commission Act (NJAC) to supplant the collegium system in the selection of judges. It was a body dominated by the executive. The amendment was passed by both houses of the parliament but was struck down because it violated the independence of the judiciary.

At present judges are still appointed by the collegium system.

INEFFICIENCIES

Despite its existence, the Collegium system has not effectively addressed the growing backlogof cases and the increasing number of judicial vacancies. The Supreme Court’s stance in the Second Judge’s case (1993), emphasizing the importance of seniority in making recommendations to the Supreme Court, seems incongruent with recent instances of supersession in appointments.

In essence, the Collegium system’s lack of constitutional basis, transparency, and accountability, coupled with issues of nepotism and challenges in addressing judicial vacancies, raises questions about its efficacy and adherence to principles of meritocracy in the appointment of judges. Reforms and a more transparent, accountable framework may be necessary to address these concerns and enhance the credibility of the judicial appointment process in India.

Non-Transparency in Appointments: One of the primary concerns is the lack of transparency within the collegium system. The process is often viewed as a closed- door affair, lacking clearly defined eligibility criteria and a transparent selection procedure. Furthermore, the absence of prescribed norms and the non-publication of official minutes from collegium proceedings contribute to the opacity of the decision-making process.

Nepotism and Favoritism: Allegations of nepotism and favoritism within the collegium are pervasive. Instances have been reported where judges within the collegium have recommended their close relatives for judicial appointments, raising serious questions about the fairness and impartiality of the selection process. Successive collegiums may avoid recommending candidates disliked by the government. The system may overlook highly capable junior judges and advocates.

Lack of Diversity: The absence of an institutional mechanism to ensure diversity on the Bench is a glaring issue. There is a notable underrepresentation of marginalized communities, including Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward Classes (OBCs), and minorities, in the collegium’s selections.

Non-Filling of Vacancies: Despite the acknowledgment of the issue of pending cases, a perceived lack of proactive measures to address the problem exists. The delay infilling judicial vacancies contributes to the backlog of cases and undermines the judiciary’s ability to dispense timely justice.

Difference of Opinion: Internal dissent among collegium members is a significant hindrance to the effective functioning of the system. Conflicting opinions on recommendations and appointments lead to delays and challenges in reaching a consensus.

Issues with Conventions: Certain conventions within the collegium system present additional challenges. For instance, once a recommendation for the successor to the Chief Justice of India (CJI) is made, the collegium traditionally refrains from making further decisions. This convention, coupled with the practice of appointing the CJI based on seniority, can result in short tenures and potential delays in decision-making. Extra-Constitutional Formation: Established through Supreme Court judgments, the collegium is seen as a body not explicitly mentioned in the Constitution. Exclusion of Non-Judicial Representatives: The absence of seats for non-judicial members, including those from the executive or the Bar, undermines the principle of checks and balances. Noteworthy absence of appointments from the category of distinguished jurists, as outlined in Article 124. Appointments to the highest court often come from judges in High Courts, with minimal representation from the Bar.

PUBLIC VIEWS

Public sentiments differ based on perceptions of fairness, transparency, and the systems role in safeguarding judicial independence. Ongoing discussions have led to calls for reforms, aiming for a more inclusive and transparent process for judge appointments.

Positive Views:

● Preserving Judicial Independence: Seen as a safeguard for maintaining an independent judiciary.

● Emphasizing Expertise: Praised for ensuring judges are appointed based on merit and judicial competence.

● Curbing Executive Interference: Viewed as a check against undue influence from the executive branch.

Negative Views:

● Transparency Concerns: Criticized for a perceived lack of transparency in decision- making.

● Potential for Nepotism and Favouritism: Concerns raised about possible bias and favouritism in the selection process.

● Calls for Reform: Many advocate for a more transparent and accountable system, prompting calls for reforms.

1. Concerns about Judicial Independence: Making alterations to the collegium system raises concerns about potential threats to judicial independence. Striking the right balance between reforms and preserving the judiciarys autonomy is a delicate challenge. There is a need to find this balance for the smooth judicial functioning.

2. Resistance from the Judiciary: The judiciary, as an integral part of the collegium system, may resist changes that could affect its role in the appointment process. Resistance arises from a reluctance to embrace alterations perceived as compromising judicial independence. This resistance led the NJAC to be struck down.

3. Apprehensions of Political Interference: Proposals for change face scepticism, especially if there are fears that the executive branch might exploit a reformed system to exert greater influence over judicial appointments. Achieving a careful balance in defining the roles is crucial.

4. Requirement for Constitutional Amendment: Substantial changes to the collegium system may require constitutional amendments. The process is time-consuming and politically sensitive, adding complexity to the efforts for reform

5. Balancing Transparency and Privacy: Balancing transparency in the appointment process with the need to respect the privacy of judges under consideration is challenging. Critics emphasize transparency while acknowledging the necessity for confidentiality in certain aspects.

6. Lack of Consensus on Reforms: The absence of agreement among stakeholders, including legal experts, politicians, and members of the judiciary, on the specific reforms needed can impede progress. Divergent opinions on enhancing the appointment process pose a challenge.

7. Historical Precedence and Inertia: The long-standing nature of the collegium system may lead to resistance to change due to the inertia of established practices. Overcoming the momentum of historical precedents presents a significant challenge. It has come through many revolutions and

8. Public Perception and Trust: Building public trust in a reformed system is crucial. Ensuring that changes are perceived as addressing existing flaws and are not politically motivated is essential for the effectiveness of the new system.

CONCLUSION

In summary, the exploration of the collegium system and its challenges in India unveils a nuanced judicial landscape. The progression from the First Judges Case to subsequent legal milestones, notably the Third Judges Case in 1998, underscores the ongoing struggle to define the equilibrium between executive and judicial authority in the judicial appointment and transfer processes. While the collegium system aims to safeguard judicial independence, criticisms centre on its perceived opacity and lack of accountability. The legal evolution highlights a shift toward a more collaborative and consultative decision-making approach, particularly in appointing Chief Justices. Confronted with the shortcomings of the collegium system, India faces a crucial juncture necessitating comprehensive judicial reforms. Achieving a delicate harmony between transparency, accountability, and the autonomy of the judiciary remains a formidable challenge. The ongoing discourse emphasizes the imperative for continual assessment and enhancement of institutional mechanisms to ensure a resilient and impartial judiciary, upholding the fundamental tenets of justice and the rule of law

REFERENCES

● “National Judicial Appointments Commission Bill, 2014”, PRS Legislative Research,

Ministry of Law and Justice.

https://prsindia.org/billtrack/the-national-judicial-appointments-commission-bill-2014

● “National Judicial Commission Bill, 2022”, Drishti IAS, 10 dec, 2022.

https://www.drishtiias.com/daily-updates/daily-news-analysis/national-judicial-

commission-bill-2022

● Aditya Dubey, “What is Supreme Court of India Collegium and How it Works?”,

Advocate Khoj,

https://www.advocatekhoj.com/blogs/index.php?bid=597515a97110ac9a612013454&bc

md=VIEW

● “Centre Vs Collegium Row: How the judges are appointed in India”, India Today, 25th