Collegium System
In India, the appointment of judges to the higher judiciary (Supreme Court and High Courts) is done through a process known as the collegium system. Under this system, a body of senior judges called the “collegium” consisting of the Chief Justice of India and the four most senior judges of the Supreme Court, is responsible for making recommendations for the appointment of judges to the higher judiciary.
In this system the Chief Justice of India (CJI) and the four most senior judges of the Supreme Court collectively recommend candidates for appointment as judges to the higher judiciary, which includes the Supreme Court and High Courts.
The process begins when the Chief Justice of India, in consultation with the other members of the collegium, prepares a list of candidates for the position of judge,when a vacancy arises in the higher judiciary.. This list is then sent to the government, which can either accept or reject the names on the list, but cannot make any changes to it. If the government accepts the list, the appointments are made. If the government objects to any of the names on the list, the collegium can either modify the list or re-consider the names in question.
Legal Background
The system was established by the Supreme Court in 1993 through a judgment in the case of S. P. Gupta v. Union of India, as a response to concerns about the lack of transparency and accountability in the previous system of appointment, which gave the executive branch of government significant control over the selection of judges.
Before the collegium system was established, the process of appointment of judges to the higher judiciary (Supreme Court and High Courts) was done through a system of consultation between the executive branch of government and the judiciary. Under this system, the executive branch had significant control over the selection of judges and there were concerns about lack of transparency and accountability in the appointment process.
In the S. P. Gupta case, a group of lawyers and public interest organizations challenged the constitutionality of this system of appointment, arguing that it allowed for political interference in the judiciary and that appointments were not based on merit and seniority.
In response, the Supreme Court introduced the collegium system, which was based on the principle of “collective responsibility” and “collective wisdom” of the senior-most judges of the Supreme Court. Under the collegium system, a body of senior judges called the “collegium” consisting of the Chief Justice of India and the four most senior judges of the Supreme Court, was responsible for making recommendations for the appointment of judges to the higher judiciary.
The collegium system was intended to ensure that the judiciary remains independent and free from political interference, and that appointments are based on merit and seniority. It was also designed to ensure transparency and accountability in the appointment of judges.
Significance of Collegium System
The collegium system is based on the principle of “collective responsibility” and “collective wisdom” of the senior-most judges of the Supreme Court. The system is intended to ensure that the judiciary remains independent and free from political interference, and that appointments are based on merit and seniority.
The collegium system has been in practice since 1993 and it has been the primary method of appointment of judges to the higher judiciary. However, it has been criticized for its lack of transparency, accountability and for not providing enough representation to various groups such as women, minorities and people from marginalized communities.
Benifits of Collegium System
The collegium system of appointment of judges in India is intended to ensure that the judiciary remains independent and free from political interference, and that appointments are based on merit and seniority. Some of the benefits of this system include:
- Independence of Judiciary: The collegium system is based on the principle of “collective responsibility” and “collective wisdom” of the senior-most judges of the Supreme Court, which ensures that the judiciary remains independent and free from political interference.
- Merit-based appointments: The collegium system is designed to ensure that appointments to the higher judiciary are based on merit and seniority. Candidates are chosen based on their qualifications, experience, and performance as judges.
- Seniority: The collegium system takes into account the seniority of the candidates while making recommendations for appointment, which ensures that the most experienced and senior judges are appointed to the higher judiciary.
- Transparency and accountability: The collegium system is intended to ensure transparency and accountability in the appointment of judges. The list of candidates is prepared by the CJI, in consultation with the other members of the collegium, and sent to the government for approval.
- Reducing the political influence: The collegium system reduces the political influence on the appointment of judges. The government cannot make any changes to the list of candidates and can only either accept or reject the names on the list.
- Maintaining the balance between the executive and the judiciary: The collegium system helps to maintain the balance of power between the executive and the judiciary. It ensures that the judiciary remains independent and free from political interference and at the same time, it ensures that the appointments are made with the approval of the executive branch of government.
Criticism of Collegium System
The collegium system has been criticized for its lack of transparency, as there are no formal criteria for selection and no published records of the proceedings of the collegium. The system also does not have any mechanism for redressal of grievances of citizens against the appointments made.
The collegium system of appointment of judges in India has been criticized for several reasons, including:
- Lack of transparency: The collegium system is criticized for its lack of transparency, as there are no formal criteria for selection and no published records of the proceedings of the collegium. This makes it difficult for the public to understand the basis for appointments and for any grievances to be raised.
- Lack of accountability: There is no mechanism for redressal of grievances of citizens against the appointments made by the collegium system which makes it difficult for citizens to hold the system accountable.
- Political influence: Some critics argue that the collegium system is not completely insulated from political influence and that appointments can be influenced by the government or by senior judges with personal or political connections.
- Lack of representation of diverse groups: The collegium system is also criticized for not providing enough representation to various groups such as women, minorities and people from marginalized communities.
- Lack of objective criteria: The collegium system is criticized for lack of objective criteria for appointment of judges, which leads to subjectivity in the selection process.
- No mechanism for investigation: There is no mechanism for investigation of complaints against the candidates which raises questions on the integrity of the appointed judges.
- Opacity in decision making: The collegium system is criticized for not providing enough information about the process of decision making, which makes it difficult for people to understand the basis for appointments.
- Delays in appointment: There have been instances of delays in the appointment of judges which can cause backlog in the court system and can lead to delays in the administration of justice.
As a result, many have called for a reform of the collegium system, to make it more transparent and accountable, and to include diverse groups in the appointment process. However, the proposed reforms have not been implemented yet and the collegium system is still in practice.
In recent years, there have been calls for a reform of the collegium system, with some proposing the creation of a National Judicial Appointments Commission (NJAC) to replace the collegium system and make the process of appointment more transparent and accountable. However, the proposed NJAC was struck down by the Supreme Court as unconstitutional.
It is worth to mention that the collegium system is still in practice, but the recent judgement of supreme court in the case of “Supreme court Advocates on Record Association & Ors. v. Union of India & Ors” has made some changes in the collegium system of appointment, which include the creation of a secretariat for the collegium, a memorandum of procedure for appointments, and the creation of a permanent mechanism for the investigation of complaints against judges.