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The Problem With The Court’s Collegium

Context

The Chief Justice of India, U.U. Lalit, set in motion the procedure for the collegium of the Supreme Court to appoint new judges to the Supreme Court, despite his brief tenure.

Relevance

GS Paper 2:  Structure, organization and functioning of the Executive and the Judiciary; Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.

Mains Question

Explain the evolution of India’s Collegium system for appointing and transferring judges. (250 Words)


The most recent issue in the SC collegium

  • The backstory: An in-person meeting of the full collegium to finalise the appointment could not be held on the agreed-upon date (30 September 2022) because one of the four collegium members, Justice D.Y. Chandrachud, had court commitments.
    • As a result, Chief Justice of India UU Lalit circulated letters to his four co-members (of the collegium) seeking their written opinion on the appointment of ten judges to the Supreme Court.
  • Rift: While two Justices, Sanjay Kishan Kaul and KM Joseph, wrote back to the CJI to approve the proposals, the other two members, Justices Chandrachud and S Abdul Nazeer, objected to the procedure of appointing and selecting judges through letter circulation and withheld approval.
    • They did not, however, express an opinion on the names of the candidates circulated by the CJI.
  • Next CJI notice: In the meantime, the Law Minister requested the CJI’s opinion on the appointment of his successor.
    • However, convention suggests that the collegium not meet and conduct its business with less than a month until the CJI retires.
  • As a result, the incumbent CJI, UU Lalit, is unable to make any further appointments.
  • Breaking with tradition: For the past 25 years, ever since the collegium was established, physical meetings have been held, and this has become customary law (a custom is followed for so long that it becomes law by precedence).
    • However, when the current CJI sought an opinion in writing through circulation, he deviated from custom.

The Collegium System

  • Definition: It is a system in which the Chief Justice of India and the Supreme Court’s four senior-most judges decide on judicial appointments and transfers.
  • Position: It is not mentioned in the Indian Constitution. To maintain independence, the basic tenet of the collegium system is that the judiciary should have precedence over the government in matters of appointments and transfers.
  • Evolution: The collegium system arose from years of conflict between the judiciary and the executive, which was exacerbated by instances of court-packing (the practise of changing the composition of judges in a court), mass transfers of high court judges, and two supersessions to the office of the Chief Justice of India in the 1970s.

The operation of the collegium system

  • The appointment of the Chief Justice and Supreme Court judges is governed by a Memorandum of Procedure. The CJI and Supreme Court justices are appointed by the President in accordance with Article 124 (2) of the Constitution.
  • Appointment of Supreme Court Judges: When a vacancy in the apex court is expected, the collegium recommends a candidate to the Union Law Minister. The CJI consults with the rest of the Collegium members, as well as the court’s senior-most judge from the High Court to which the recommended person belongs.
    • The opinions of each member of the Collegium and other judges consulted should be in writing and included in the candidate file submitted to the government.
    • If the CJI consulted non-judges, he should prepare a memorandum containing the substance of the consultation, which should be included in the file.
    • After receiving the recommendation from the Collegium, the Law Minister would forward it to the Prime Minister, who would advise the President on appointment.
  • Executive role: Judges of the higher judiciary are thus appointed only through the collegium system, and the government has no role until the collegium has decided on names.
    • If a lawyer is to be elevated as a judge in a High Court or the Supreme Court, the government’s role is limited to requesting an investigation by the Intelligence Bureau (IB).
    • The government may also object to and seek clarification on the collegium’s selections, but if the collegium repeats the same names, the government is obligated to appoint them.

Criticisms of the collegium system

  • Inadequate background checks: The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collecting and verifying prospective appointees’ personal and professional backgrounds.
  • Informal and ambiguous: A behind-closed-doors affair with no prescribed norms for eligibility criteria or even the selection procedure.
  • No official recordings: There is no official mechanism in place, and there are no official minutes of collegium proceedings
  • Ignores talent pool: The collegium’s selection of the senior-most judges from the High Court for appointments to the Supreme Court ignores several talented junior judges and advocates.
  • Out of the public eye: The public has no idea when and how a collegium meets, or how it makes decisions.

Potential solutions

  • Minutes recording: The collegium’s deliberations could be videotaped and archived.
  • Specified criteria: Having broadly set specific parameters, such as regional representation, seniority, gender, and so on, to elevate judges and advocates to the Supreme Court rather than relying solely on collegium unanimity, could avoid future disagreements.
  • UK Model: A special selection commission selects the various applicants for the position of judge, based on the qualifications and procedure prescribed.
    • The chosen nominees are reported to the Lord Chancellor, who recommends a name to the Prime Minister, who then advises the King on the appointment.
  • US Model: Under the US Constitution, the President has the authority to appoint a Supreme Court nominee, and the Senate has the responsibility to confirm a nominee in order to enforce the concept of checks and balances.

Previous suggestions

  • National Judicial Appointments Commission (NJAC): The Constitution (98th Amendment) Bill established the NJAC, which would be chaired by the CJI and comprised of two of the Supreme Court’s senior-most judges.
    • The Union Law Minister would be a member, as would two other distinguished citizens chosen by the President in consultation with the Prime Minister.
    • The Commission would make decisions on the appointment and transfer of judges, as well as investigate cases of judge misconduct, including those from the highest courts. However, it was overturned by a Supreme Court Constitution Bench.
  • In its 214th Report on Proposal for Reconsideration of Judges Cases I, II, and III, the Law Commission proposed two solutions:
    • Seeking reconsideration of the three Supreme Court decisions
    • A bill to restore the Chief Justice of India’s primacy and the executive’s power to make appointments.

Conclusion

  • Changing past norms: On the last sitting day of the retiring Chief Justice, Justice S.M. Sikri, some of the most significant decisions, including the celebrated Kesavananda Bharati, were taken and judgments delivered.
    • As a result, the convention that collegium cannot conduct business when CJI has less than one month to retire is unconvincing.
  • Task prioritization: Appointing judges is a higher and more sacred decision than deciding cases, which is the Courts’ primary function and obligation.
  • However, avoiding collegium meetings and failing to make appointments as judges in accordance with established conventions is completely misconceived and devoid of substance.

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