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Collegium System is a system under which appointments and elevations of judges and lawyers to the Supreme Court and of India and 4 Senior most judges of the Supreme Court as there is no constitutional provisions with regard to the appointments of Judges, the Collegium System, by going into the details of the famous “three judges case”, understanding the current situation of the system by discussing the marits such as the independence of the judiciary and demerits of this system such as the prevelance of inheritance nepotism as also reiterated by the law commission of India, this system of appointment, the 99th Constitution Amendment Act, which entailed the National Judicial Appointments Commission (declared unconstitutional by the SC).
Supremacy of Executive- Judges Trasfer Case I –
Through according to the language used in Art. 124 the president is required to “consult”, legal experts but prior to the decision of the supreme court in S.C., it had always been interpreted that the president was not bound act in accordance with such consultation, the meaning of the word ‘consultation’, came for the consideration of the Supreme Court in the Sankalchand Sheth’s case, which was related to the scope of Article 222, of the constitution, it was held that the word “consultation”, meant full and effective consultation, for a full and effective consultation, for a full and effective consultation it is necessary three constitutional functionaries, the president, however, has a right to differ from them and take a contrary.
In S.P Gupta V. Union Of India, popularly known as the judges transfer case, the supreme court unanimously agreed with the meaning of the term ‘consultation’ as explained by the majority in Sankalchand Sheth’s Case, the meaning of the word ‘Consultation’ in Article 124(2) was the same meaning of the word ‘Consultation’ In Article 217 and Article 222 of the Constitution, the only ground on which the decision of the government could be challenged has that it was based on mala fide and irrelevant considerations, that is, when constitutional functionaries expressed as opinion against appointments.
Judicial Supremacy- Supreme Court Advocates on Record Association Vs. Union Of India- Judges Transfer Case II – In S.C. Advocate-on-Record Association v. Union Of India-
Popularly known as Judges transfer case, a nine Judge Bench of the Supreme Court by a 7:2 majority overruled its earlier judgement in the judges transfer case and held that in the matter of appointment of the judges of the Supreme Court and the High Courts, the Chief justice of India should have primacy, the matter was brought before the court through a PIL writ petition filled by an advocate of the Sc seeking relief of filling in the higher judiciary, the appointment of chief justice Of India shall be on the basis of seniority, the court laid down detailed guidelines governing appointment and transfer of judges significance should be attached to the view of the CJI taking into account the views of two senior most judges.
The important guidlines laid down by the court –
- Individual initiation of high constitutional functionaries in the matter of the judges appointments reduced to minimum, it gave primacy to the CJI, but put a rider that he must consult his two colleagues.
- Constitutional functionaries must act collectively in judicial appointments
- Chief justice of India was given the final say in transfer of chief Justice and Judges of High Court.
- Transfer of Chief justices and Judges of High Courts could not be challenged in Courts.
- Appointments of the Chief Justice of India by Seniority
- No Judge could be appointed by the union Government without consulting the CJI
- Fixation of the Strength in High Courts was Justiciable.
No binding on government; appointment and transfer of judges case – III- In re presidential reference a nine judge bench of the supreme court unanimously held that the;
Recommendation made by the CJI on appointment of Judges of the SC and HC without following the consultation process, upholding the government’s stand on consultation process , the court also widened the scope of the CJI, president in his reference to the SC, under Art. 143 of the Constitution, the SC Advocates case for the appointments and transfer of judges.
The Court held – the consultation process to be adopted by the chief Justice of India requires consultation of plurality of Judges, the expressions “Consultation with the Chief Justice Of India, In Articles 217 and 222 of the Constitution Of India, require consultation with plurality of Judges, the Majority held that in regard to the appointment of Judges to the SC under the Art. 124 (2), India should consult “a collegiums of four senior most Judges of the Supreme Court” made it clear that if “two judges give adverse opinion the CJ should not send the recommendation to the Government.
NATIONAL JUDICIAL APPOINTMENTS COMMISSION –
In S.P. Gupata vs. Union Of India, Justice Bhagwati had suggested for the appointments of a Judicial Commission on the line of Australia Judicial Commission.
The law commission suggested in 1987 that a National Judicial Service Commission should have the Final say in matters of selection, promotion and transfer of Judges, the law commission suggested that the National Judicial Commission should be headed by the CJI.
Position after 99th Amendments of Constitution –
The constitution (99th amendments), Act, 2014 amended Articles 124 (2), 127 and 128, it inserted Articles 124A, 124B AND 124C, According to the amended Article 124 (2), every Judge of the Supreme Court shall be appointed by the president by warrant, the recommendation of the NJAC referred to in Article 124A, the president with the Judges of the SC and HC.
The provision of National Judicial Appointments Commission-
Article 124A provides;
- There shall be a commission to be known as the National Judicial Appointments Commission consisting of the followings;
- The chief justice of India, chairperson, ex- officio;
- Two other senior Judges of the Supreme Court next to the Chief Justice of India- Members, ex- officio.
- The union minister in charge of law and Justice – Member, ex- officio
- Two eminent persons to be nominated by the committee consisting of the prime minister, the chief justice of India and the leader of opposition in the house of the people, is no such leader of opposition party;
Provided that one of the eminent person shall be nominated for a period of three and shall not be eligible for renomination.
- No Act or proceedings of the National Judicial Appointments Commission shall ne questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the Constitution of the Commission.
- Functions Of National Judicial Appointments Commission –
Under Article 124B, the National Judicial Appointments Commission shall have following duties;
- To recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts;
- To recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and
- To ensure that the person recommended is of ability and integrity.
Procedure for Appointments to be regulated by the parliament –
In Supreme Court Advocates- on – record Association vs. Union Of India, the supreme court by its order declared constitution (99th ), amendment Act, 2014 and national judicial appointments commission ac, unconstitutional and void, the system of appointments commission of judges to the supreme court, 99th amendment act, for the system the “collegiums system, Min points of judgement of Justice Jagdish Khehar – Sec. 5 (1) of the National Judicial Appointments Commission Act, 2014 (NJAC Act), provided the senior most judge of the supreme court to be appointed as chief justice of India subject the condition of being considered, it was not within the realm of parliament to subject, with reference to the senior most judge of the SC under Sec. 5 of the NJAC Act.
Judges from the same high court, appointed to the SC, for the reasons indicated by the petitioners that the mandate contained under Sec. 5 (2) of the NJAC Ac, the regional representation in the SC, the regional representation, federal characters, the consideration of Judge their seniority, sec. 6 (6), NJAC Ac, the two eminent members the free will the nominating authorities, constitutional positions, comprise of 1/3strength, NJAC Art. 124 (1)(d), while exercising its power under Art. 368.
An ordinary Legislation can be invalidated for violating the constitutional provisions –
Justice Madan B Lokur held; Article 124A as introduced by 99th Amendment impinges on the independence of the judiciary and in the matter of appointment of Judges, alters the basic structure of the constitution, the other provisions of this amendment, the NJAC Act confers arbitrary various authorities Art. 14 of the Constitution, in the absence of the 99th Amendment , the Collegium System postulate.
Justice Kurian Joseph held –
The parliament has no power to gerrymander the constitution, impairs the structural distribution of powers, process of substitution and insertion by way of constitutional amendments, the pre- amended provisions automatically resurface, the present collegiums system lacks transparency and objectivity.
Guidelines for improvement of Collegium System –
In supreme court Advocates- on – record, the earlier collegiums system was criticized for capacity and the collegiums system was revived, a committee was formed to compile, by the Bar council of India, transparency, collegiums, eligibility criteria, by a committee consisting of Attorney general of India, the memorandum of procedure and introducing amendments, by the government of India in consultation with the president of India and CJI.
Eligibility Criteria –
The memorandum of procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the collegiums for appointment of Judges, after inviting and taking into consideration the views of the state Government.
Advantage of the Collegium System –
- The collegiums System increases, a former Judge of the Supreme Court Of India, stated that this system is one of the best, it kept secret within the four walls of the body for proper and effective functioning of the institution.
- The colleguim system makes Judiciary independent from the politics, it separates the Judiciary from the influence of executive and legislative, govt’s influence judiciary, this ensures the regulation of the doctrine of separation of power.
- There are many cases in which the judges of the supreme court were transferred the political influence, power given to executive transferring the independence of Judiciary ,the judge to perform their duty any fear interference and influence.
- The executive organ is not specialist the knowledge regarding the requirements of the Judge as comparative, the position of the Judge in Supreme Court. 
- This system does not provide any guidelines in selecting the candidates for the Judge position of the Supreme Court because of which it leds to wide scope for the Nepotism.
- The Collegium system does not have any criteria for testing the candidates as well as they don’t investigate any background of the Candidates and they are not accountable.
- There are many cases pending in the court, limited power given to appointments would lead to burden to Judiciary.
- The principle of check and balance is violated, three organ work partially, they keep on the excessive powers to Judiciary with the consultataion of CJI, not be ensured.
- This system leads to non transparency of the Judicial system, which is very harmful for the regulation of law
What is the common criticism made against the Collegium System ?
The Constitution makers, but also for the way it functions and a lack of transparency, scope for nepotism, the mystique of the process, make wrong appointments to nepotism, the attempt made to replace it by a national Judicial Appointments, the attempt made, Justice Chelameswar, inherently illegal, the majority opinions admitted the need for transparency.
Whether the situation improves after the RTI, CJI judgement remains but it is evident that there is no accountability in the appointment of judges, the people who run the appointments of proper responsibility and accountability, the judiciary not only failed in the implementation of the collegiums system, even culpable for it; union government be running point, Indian Constitution immediate attention, all mechanism for judicial appointments may have some system.
Author: Priyanka Atul Lolap, STES, Sinhgad Law College (SPPU),Pune Maharashtra.
- Constitution of India (Dr. Pande) Book