HOW DOES THE COLLEGIUM SYSTEM WORK?

INTRODUCTION

A Collegiums System is an Indian judicial system that deals with the appointment, promotion, and replacement of Supreme Court justices via a discussion that includes the Chief Justice of India with four of the Supreme Court’s most senior judges. There is no such mention of the collegium in the Indian Constitution or any subsequent changes to the Constitution. In any case, under Article 124 (2) of the Constitution, “the Judges of the Supreme Court are selected by the President after counsel with a particular number of the Judges of the Supreme Court and of the High Courts in the States as the President may consider significant for the reason the president selects the judges”[1] Article 217, specifies that “the Judge of a High Court should be appointed by the President in consultation with the Chief Justice of India, the State governor, and, if a Judge other than the Chief Justice is available, the Chief Justice of the High Court”[2]

THE COLLEGIUM SYSTEM’S EVOLUTION

After three key cases that are regarded landmarks in the development of the collegium, the system was eventually implemented.

Union of India v. S.P. Gupta & Ors

 “This decision, also known as the First Judges Case of 1981, was decided by a seven-judge constitution bench, which ruled that judges might be reassigned against their will. It began with Article 124 (2), which envisioned a fair consultation and said that the consultation should be comprehensive, meaning that it should not be more or less, implying that the Chief Justice should be given all factual inputs necessary to make an opinion. All correspondence with him must be in writing. The justification for this decision was that the executive cannot have ultimate power since the judiciary is not responsible to anybody, giving the executive primacy over the judiciary”[3]

Union of India v. Supreme Court Advocates on Record Association (SCARA)

“This case, also known as the Second Judges Case of 1993, included a nine-judge Constitutional bench that overturned S.P Gupta’s ruling and established a new method for the appointment and transfer of judges in the higher court known as the ‘collegium system’ In this case, the Chief Justice of India was given precedence in issues of appointment and transfers, and the phrase ‘consultation’ was not used to undermine the CJI’s major role in judicial appointments”[4]

 Re: Under Article 143(1) Of The Constitution Of India V Unknown

“Also known as the Third Judges Case of 1998, this case included a nine-judge constitution bench discussing the re-appointment of judges. The Collegium System was enlarged as a result of this decision. The Supreme Court’s decision had an influence on and increased the extent of judicial primacy in appointing justices. The decision said that the Chief Justice’s view was crucial, but that he would consult with four of the Supreme Court’s most senior justices, constituting a collegium. The collegium system was functional rather than structurally rigid. It was also stated that the Chief Justice of the High Court, as well as two of the High Court’s most senior justices, would be consulted in the selection of High Court judges”[5]

THE COLLEGIUM SYSTEM’S LIMITATIONS

The core of democracy is jeopardized when judges select judges. If the founders of the Constitution had seen the benefits of this system, they would have included it in the document. The collegium, on the other hand, is a notion that has grown from the judiciary to the judiciary. According to the Law Commission’s report, the Collegium System is plagued by pervasive nepotism and personal favouritism. That favour is done in return for a favour, and a judge’s kid will eventually become a judge.

RECENT LANDMARK JUDGMENTS RELATING TO THE ISSUE

“Supreme Court upheld a Delhi High Court decision in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, in which the CJI’s office was declared a public authority under the RTI Act. The position of the Chief Justice was also expected to be comparable to that of the Supreme Court. Transparency does not jeopardize judicial independence, according to the Supreme Court, since judicial freedom and duty are inextricably linked. Concerns and constraints about untouchable legal executive power have changed to the point where public interest and security criteria must be adopted in determining the intricacies of the contributions, While the data may be revealed after a variety of factors, this decision brings the Supreme Court office into the spotlight”[6]

“In the United Kingdom, known as the mother of majority rule, the Judicial Appointments Commission (JAC) is an independent body that oversees the selection of candidates for legal positions in courts and tribunals. It is made up of 15 members, three of whom are from the Judges Community and the remaining 12 (including Chairmen) are chosen through open competition”[7]

In South Africa, which follows in the footsteps of Mahatma Gandhi and Nelson Mandela, the President appoints judges after consulting the “Legal Services Commission,” which consists of 23 individuals, including judges, advocates, legal professors, members of Parliament, and famous people chosen by the president. Individuals from the panels will be kept throughout the parliament’s delight.

“The Federal Constitutional Court, which consists of 15 persons, is the highest court of Italy, which is one of the ancient magnificent states. One-third of the judges will be appointed by the president of the country, one-third by the parliament in a joint session, and one-third by the highest case customary and regulatory courts. Every legal authority in other prominent countries looks to be engulfed by the Executive’s obstruction. In India, it seems that the present judges are the problem with the judicial setup”[8] The Indian parliament believed the collegium system required oversight and openness, therefore the 99th amendment to the Indian constitution formed the National Judicial Appointments Commission (NJAC) in August 2014. (National Judicial Arrangements Commission). Mr. Justice M.N. Venkatachaliah, who chaired the National Commission to Audit the Constitution’s Workings, has also advocated a five-member National Judicial Commission, with a wide supervisory role in judge nomination and appointment.

“Association of India v. Supreme Court Advocates on Records Association”[9]

The constitutionality of the NJAC was questioned, and the court determined that it was arbitrary. The fundamental issue was that the independence of the judiciary from the executive, as defined in Article 50, is intimately related to the doctrine of structure all throughout the Republic of India’s constitution and functioning.

The NJAC was striked, according to J. Kehar, due to the judiciary and executive’s sovereignty and the split of powers. “Things should not be multiplied until essential,” J. Kurian Joseph agreed – Entia Non-Sunt Multiplicanda Sine Necessitate.

The opposite perspective on J. Chelameswar is that the 99th Constitutional Amendment Act is constitutional since it does not grant the president complete authority over judicial nominations and transfers. Furthermore, the NJAC assures that no vile up-and-comer will be allocated up to two commission members to monitor the applicant’s stumbling. He also said that the presence of the union law did not imperil the integrity or freedom of the legal executive, but that rejecting it would seriously damage the legitimacy of a democratically elected government and will be fatal to the essential element of governing standards.

CONCLUSION

Whether or if the situation improves as a result of the RTI – CJI judgement, it is evident that the judicial system lacks accountability. The people in charge of the preparations do not have the essential dedication. Not only has the judicial executive failed to implement the collegium system, but it is also not to blame. On the other hand, the Union Government seems to be on track right now, and the obstacle has reappeared. The Indian Constitution has survived the test of time and needs to be revisited as soon as possible.

Author(s) Name: VALLURI VISWANADHAM (DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY)

References:

[1] Constitution of India 1950, art. 124(2)

[2] Constitution of India 1950, art. 217

[3] Union of India v S.P.Gupta & Ors, AIR 1982 SC 149.

[4] Union of India v. Supreme Court Advocates on Record Association (SCARA), 1991 Supp (1) SCC 574

[5] Re: Under Article 143(1) Of The Constitution Of India V Unknown, AIR 1999 SC 1.

[6] Supreme Court of India v. Subhash Chandra Agarwal, MANU/SC/1561/2019.

[7] “Judicial Appointments Commission” (Courts and Tribunals Judiciary) <https://www.judiciary.uk/related-offices-and-bodies/judicial-appointments-commission/> accessed May 25, 2022

[8]“National Justice Systems” (European e-Justice Portal) <https://e-justice.europa.eu/content_judicial_systems_in_member_states-16-it-en.do?member=1> accessed May 25, 2022

[9] Association of India v. Supreme Court Advocates on Records Association,  MANU/SC/1183/2015

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