COLLEGIUM SYSTEM

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• Recently, the Supreme Court (SC) Collegium, led by Chief Justice of India (CJI) has recommended to the government nine names for appointment as SC judges.
• The Collegium has for the first time, in one single resolution, recommended three women judges.
• It has thus sent a strong signal in favour of representation of women in the highest judiciary.

Important points:

It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.

Evolution of the System:

Third Judges Case (1998):

• SC on President’s reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
• The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
• A HC collegium is led by its Chief Justice and four other senior most judges of that court.
• Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC 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.

Procedure:

For CJI:

• The President of India appoints the CJI and the other SC judges.
• As far as the CJI is concerned, the outgoing CJI recommends his successor.
• In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.

For SC Judges:

• For other judges of the SC, the proposal is initiated by the CJI.
• The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
• The consultees must record their opinions in writing and it should form part of the file.
• The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

Chief Justice of High Courts:

• The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States.
• The Collegium takes the call on the elevation.
• High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
• The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
• The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Criticism:

1. Opaqueness and a lack of transparency.
2. Scope for nepotism.
3. Embroilment in public controversies.
4. Overlooks several talented junior judges and advocates.

Way Forward

Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.

SOURCE: THE HINDU,THE ECONOMIC TIMES,MINT