We often see Supreme Court in the news for the pronouncement of judgments. Although, nowadays, it can be seen defending itself over the functioning of the Collegium system. The war of words can be seen between the Government of India and the Supreme Court of India. This debate keeps arising from time to time. The latest debate began when Union Law Minister Kiren Rijiju remarked. ‘I do not want to say much as it may seem like the government interfering in the judiciary. But the spirit of the Constitution says it is the government’s right to appoint judges.’ He has found a vocal ally in Vice-President who has been criticizing the collegium system in India. But what is the collegium system in India and how does it works?
In India, Collegium System also called “Judges- selecting- Judges”, is an established tradition of appointing judges in the Higher Judiciary. Under this system, judges are appointed and transferred by the judges only. But, you will be amazed to know that Collegium System is nowhere mentioned in the Indian Constitution. I mean nowhere. This system has evolved through the Supreme Court Judgments.
The root of the term “Collegium System” in India can be traced back to the dissent of J. Bhagwati in “SP Gupta V. Union of India” (1981) which is known as the First Judges’ Case. However, this system fully came into existence in 1993. Then a 9 judges bench of the Supreme Court in the case of “Supreme Court Advocate on Record Association v. Union of India” laid this system by interpreting the term ‘Consultation enshrined in Article 124(2) and 222 as “Concurrence” of Chief Justice of India.
The collegium of the Supreme Court consists of five senior-most judges including the Chief Justice of India. They consider the appointment of Judges in the Supreme Court. Also, the elevation of judges of the High Courts to the Supreme Court. Judges in the High Courts are also appointed on the advice of the Collegium. This includes the Chief Justice of the Supreme Court and the Chief Justice of the High Court. However, Judges were not always appointed based on this system rather it came into existence after a particular time. For a proper understanding of the Collegium system. It is important to understand what Indian Constitution provides about the appointment of judges in the High Judiciary.
What Indian Constitution says about the Appointment of judges
Appointment of judges to the Supreme Court and High Courts is provided for in Article 124(2) and Article 217(1) of the Constitution respectively. These articles provide that the power of appointment for a Supreme Court judge vests with the President, in “Consultation” with the Chief Justice of India. In the case of the High Court, it is in consultation with the Governor of the concerned state and also the Chief Justice of India.
Article 124(2) of the Constitution talks about the process to appoint judges to the Supreme Court. It says as follows;
“Every Judge of the Supreme Court shall be appointed by the President after consultation with such of the judges of the Supreme Court and of the High Courts in the states as the president may deem necessary for the purpose and shall hold office until he attains the age of 65 years: Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
This provision provides three important things regarding the appointment of Supreme Court judges:-
- The president appoints judges.
- In the appointment of the Chief Justice of India, he will consult with other Supreme Court and High Courts judges. The question may come to mind, how many judges? This is not specified in the provision. The president consults the judges to whom he may deem necessary. Also, it is not mentioned in the constitution that the president is bound to accept the judges’ advice.
- In case of appointment of other judges, it is mandatory to consult with the Chief Justice of India. Moreover, if the president wants he can also consult with other judges. From here it can be concluded that consultation with the Chief Justice of India is necessary. But to accept it is not mandatory.
Article 217 of the Constitution provides that
“Every judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the state, and, in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court and shall hold office, in the case of an additional or acting judge, as provided in Article 224, and in any other case, until he attains the age sixty-two years.”
The Constitution of India gives the power of appointing judges to the executive. The existence of the Collegium System cannot be seen anywhere. Then why the judges are appointed by Collegium System today? The Collegium System is opposite to Article 124(2) where judges are not appointed by the Executive but are appointed by the judiciary or the judges themselves. To understand when and how Collegium System developed in India we need to go back to 26th January 1950, when Indian Constitution came into force and understand the political and constitutional history of India.
History of Collegium System in India
On 26th January 1950 when Indian Constitution came into force, Jawaharlal Nehru was the Prime Minister of India. The appointment of judges began according to the Constitution. It means the judges were appointed by President with the Consultation of Council of Ministers. Since PM Nehru was of democratic temperament, the Council of Ministers used to consult with Supreme Court and High Courts Judges. Jawaharlal Nehru laid the foundation of a tradition in which the Chief Justice of India was appointed based on seniority. This tradition was followed during the tenure of PM Nehru except in 1964 when Justice Jafar Imam was not appointed as Chief Justice due to his poor health. Otherwise, the judiciary and executive were working in harmony.
In 1956, the Law Commission headed by the then Attorney-General MC Setalvad disfavoured this practice. It recommended that in appointing the Chief Justice of India the experience of a person as a judge, his administrative competence and merit should be judged and seniority should not only be the main consideration.
When Indira Gandhi became the Prime Minister, she violated the rule of seniority two times on a big level. Both times, the motive was political. The government, however, justified its action on the grounds of the absolute discretion of the president, the recommendation of the Law Commission and the philosophy of judges to be taken into account by the executive.
25th April 1973
On this day the president of India issued the notification of the appointment of Justice A.N. Ray as the 14th Chief Justice of India superseding three senior judges of the top court – Justices Jaishankar Manilal Shelat, A.N. Grover and K.S. Hegde. This notification came a day after the historic judgement of the Kesavananda Bharati case, where a 13 Judge Constitution Bench, by a 7-6 verdict had outlined the ‘Basic Structure’ of the Constitution. This case is very significant in the history of India. It limited the amending power of parliament.
To put it in simple words, the judgement made it clear that the Constitution and not the legislature was supreme. While Justice A.N. Ray was among the six dissenting judges in the case, Justice Shelat, Hegde and Grover, whom he had superseded, were on the side of the majority. This intervention was considered as an attack on the independence of the judiciary and the blackest day in Indian democracy. The three senior judges resigned immediately.
The Year 1977
“The president has proclaimed Emergency. There is no need to panic.” The Prime Minister announced the Emergency with these words from All India Radio on 27th June 1975. This was one of “the darkest periods” India Could have ever witnessed in its entire history. Over 1 Lakh people, including eminent personalities, were put behind bars. In other words, whosoever went against the Indira-led government was sent behind bars.
Meanwhile, a case came in the Supreme Court known as Habeas Corpus Case(ADM Jabalpur v. Shiv Kant Shukla). The question, in this case, was whether the Habeas Corpus writ could be issued when an Emergency has been declared and was currently in force. The Supreme Court by a 4-1 verdict held that “Given the presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for Habeas Corpus or any other writ…” Justice H.R. Khanna gave the dissenting judgement. When in 1977 the position of Chief Justice got vacant that time Justice Khanna was the senior judge but Indira Gandhi appointed Justice Beg as Chief Justice superseding Justice Khanna.
Since Supreme Court has the power to examine how the government implements the rule of law. Tension can be seen always between the judiciary and the government over who controls or has an edge in appointing Supreme Court judges. This led to the above dispute that was settled by the Supreme Court by establishing the Collegium System of appointment of judges in India. There have been three such cases, generally referred to as “three judges cases”. After the 99th amendment of the Constitution, this can be modified to be “Four Judges Cases”.
First Judges’ Case
According to the language used in Article 124, the president is required to “consult” legal experts. The meaning of the word “consultation” came from the consideration of the Supreme Court in the Union of India v. Sankalchand Sheth, 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, it is necessary that the three constitutional functionaries “must-have for its consideration full and identical facts” based on which they would be able to take a decision. The president, however, has a right to differ from them and take a contrary view. Consultation does not mean concurrence and the President is not bound by it.
In SP Gupta v. Union of India, popularly known as the Judges Transfer Case or First Judge 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 as the meaning of the word ‘consultation’ in Article 217 and Article 222 of the Constitution. The only ground on which the decision could be challenged has that it was based on mala fide and irrelevant consideration. That is when constitutional functionaries expressed an opinion against the appointment.
Establishment Of Collegium System in India With Judicial Pronouncement
In 1993, a majority of the 9 judges of the Constitutional Bench of the SC in the 2nd Judges case. And in 1998, a unanimous opinion of the other nine-judge Constitutional Bench of the Supreme Court in the Third Judges’ Case together set up the collegium system in India.
Second Judges Case
Supreme Court Advocates on Record Association v. Union of India, popularly known as judge transfer case 2, is a nine Judge Bench of the Supreme Court by a 7:2 majority overruled its earlier judgement in the SP Gupta v. Union of India and held that in the matter of appointment of judges of the Supreme Court and High courts, the Chief Justice of India should have primacy. The court observed – The word ‘consultation’ used in Articles 124(2) and 217(1) of the Constitution, tends to be interpreted as ‘concurrence’. The Court laid down detailed guidelines governing the appointment and transfer of judges. It held that the greatest significance should be attached to the view of the Chief Justice of India. After taking into account the views of two seniormost judges of the Supreme Court.
The important guidelines laid by the court were the following —
- Individual initiation of high constitutional functionaries in the matter of Judges’ appointments was reduced to the minimum. It gave primacy to the Chief Justice of India & put a rider that he must consult his two colleagues. But he was given the final say in the transfer of Chief Justice and judges of High Courts.
- Appointment of Chief Justice of India by seniority.
- No judge should be appointed by the Union Government without consulting the Chief Justice of India.
This case created an imbalance in India’s Democracy since the weightage was given to the advice of only one person that is Chief Justice of India in the appointment of judges and no appointment can be made unless it conforms with the opinion of the Chief Justice of India. It, thus, conferred individual discretion upon the CJI which can result in personal favouritism and the view of other constitutional functionaries would become redundant.
Then came the Third Judges’ Case in the year 1998 in which it was decided that the sole opinion of the Chief Justice of India without following a consultation process is not binding on the Government
Third Judges Case
In Re Presidential Reference, a nine judge bench of the Supreme Court unanimously held that the recommendation made by the Chief Justice of India on the appointment of judges of the Supreme Court and the High Courts without following the consultation process is not binding on the Government. The court also widened the scope of the Chief Justice’s consultation process upholding the government’s stand on the consultation process, the court gave its opinion on the nine questions raised by the President in his reference to the Supreme Court, under Article 143 of the Constitution. The president had sought the Supreme Court clarification on the consultation process, as laid down in the S.C. Advocates case for the appointment and transfer of judges
The court held that the consultation process to be adopted by the Chief Justice of India requires consultation of a Plurality of Judges. The sole individual opinion of the Chief Justice of India does not constitute ‘consultation’ within the meaning of Articles 217(1) and 222(1) of the Indian Constitution.
The court explained the Collegium System and held that the collegium in India would consist of:-
- CJI and 4 senior-most judges in case of appointments to the Supreme Court. The collegium must also include the successor Chief Justice of India.
- CJI and 2 senior-most judges in case of appointments to the High Court
The court observed that regarding the appointment of Judges to the Supreme Court under Article 124(4), the Chief Justice of India should consult “a collegium of four senior-most Judges of the Supreme Court” If the two Judges give an adverse opinion the Chief Justice should not send the recommendation to the Government. The opinion of the collegium must be in writing and the Chief Justice of India should send the recommendation to the President along with his recommendations.
It is important to note that the recommendations of the collegium should be based on a consensus and unless the opinion conforms with that of the Chief Justice of India, no recommendation is to be made. Regarding the appointment of Judges of the High Courts, the court held that the collegium should consist of the Chief Justice of India and any two senior judges of the Supreme Court. Regarding the transfer of High Court Judges, the Court held that in addition to the collegium of four judges, the Chief Justice is required to consult Chief Justices of the two High Courts ( one from which the Judge is being transferred and the other receiving him).
This case properly established the Collegium System but this system is opposite to the word “constitution”. In May 1949, the Constituent Assembly debated the Collegium system, only to reject it thrice.
What Happened In Constituent Assembly & Dr Ambedker’s view on the Collegium System?
The Constituent Assembly of India, which enacted the constitution of India debated the current Article 124 (then Article 103 of the draft Constitution ) on 23-24 May 1949. On the first day, B. Pocker Sahib, a lawyer from erstwhile Madras, purposed an amendment to the article, providing that the Chief Justice of India shall initiate the proposal for the appointment of judges and suggested the substitution of the word ‘consultation’ with ‘concurrence’. The Assembly debated on this and rejected it.
Mahboob Ali Baig Sahib introduced another amendment providing the veto power to the Chief Justice of India on the appointment of Judges. “Under our proposed Constitution, the President would be the Constitutional head of the executive… the President would be guided by the Prime Minister or the Counsel of Minister who are necessarily drawn from a political party. Therefore, the decision of the president would be influenced by party considerations,” he said. But this amendment was also rejected on 24 May 1949.
The third amendment was moved by T.Shah soughing to add a new Article 102-A in the Constitution for the ‘independence and separation of judiciary.’ This amendment reads as “Subject to this Constitution, the Judiciary in India shall be Completely separate from and wholly independent of the Executive or the legislature.”
Dr B.R Ambedkar who was the chairman of the Drafting Committee strongly condemned this amendment. In end, this amendment was also rejected after debating.
Dr BR Ambedkar delivered a long speech while responding to the debates and amendments proposed in Article 124. While referring to the idea of appointment of the judges ‘with the concurrence of CJI’, Ambedkar said,
“With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seems to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to veto is the president or the Government of the day. I, therefore, think that is also a dangerous proposition.”Dr BR Ambedkar
Hence, isn’t the decision of the Supreme Court that the word ‘consultation’ means “concurrence’ the same idea that the Constituent Assembly expressly rejected decades ago?
National Judicial Appointment Commission
As we have seen above in SP Gupta v. Union of India, Justice Bhagwati had suggested the appointment of a 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 Chief Justice of India which should include three Judges each of the Supreme Court and the High Courts, the previous occupants of the office of the Chief Justice, the Attorney General, an outstanding legal academician and a representative of the Ministry of Law and Justice. A bill was introduced in Lok Sabha for setting up a National Judicial Commission in 1990. However, it lapsed consequent to the dissolution of the Lok Sabha.
In August 2014, barely three months after the Narendra Modi government took the oath of office. It purposed The National Judicial Appointments Commission (NJAC) that would appoint to the higher judiciary in India. It also brought the Consitution (99th Amendment) Bill, of 2014. Inserted Articles 124A, 124B, and 124C. It was passed by the Lok and Rajya Sabha on the 13th & 14th of August 2014 and became an Act. The NJAC were to replace the collegium system in India for the appointment of judges. NJAC Bill and the Constitutional Amendment Bill were ratified by 16 of the State Legislature in India.The president gave his assent on 31 December 2014. The NJAC Act became effective on April 13, 2015. But, soon its setup was declared unconstitutional by the Supreme Court.
What is NJAC Act?
The National Judicial Appointments Commission is a proposed body responsible for the appointments and transfers of judges in the country. According to the NJAC, the commission would replace the old collegium system. In the proposed NJAC Act, the commission consists of the following members:
- The Chief Justice of India (Chairperson);
- Two other senior judges of the Supreme Court next to the Chief Justice of India ;
- The Union Minister in charge of Law and Justice ;
- 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 or where there is no such Leader of Opposition, then, the Leader of the single largest Opposition Party in the House of the people ;
Provided that one of the eminent persons shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women.
Functions of The National Judicial Appointments Commission
The commission was entitled to recommend persons for the appointments of CJI, judges of the Supreme Court, Chief Justices of High Courts and other judges of High Courts. It also has the power to recommend the transfers of the CJI and other Judges of High Courts. And last but not the least, the commission was responsible for ensuring that the persons recommended are of the ability, merit and other criteria mentioned in the regulations related to the act.
This 99TH Amendment is a new turning point in history which tried to vest the power of appointment of judges in the executive again. But before this Amendment could come into existence, it got challenged in the Supreme Court.
Fourth Judges Case
In the Supreme Court Advocates-on-Record Association V. Union of India, the Supreme Court by its order declared Constitution (Ninety-ninth) Amendment Act, 2014 and National Judicial Appointments Commission Act, 2014 unconstitutional and void. The majority, which included Justices Khehar, Lokur, Hoel and Joseph, claimed that the involvement of the executive in the appointment of judges infringed upon its primacy and supremacy and violated the fundamental constitutional principle of the separation of powers between the executive and judiciary organs.
Even though the Collegium System in India was upheld by the majority verdict, it was noted that the system needed to be modified to improve responsiveness and transparency.
Criticism of the Collegium System
The collegium system has been criticised from time to time by various eminent personalities. Recently Union Law Minister and Vice-President of India has criticized it. There are various flaws in the system which should be looked at.
The Supreme Court’s position on the establishment of the collegium system in India is regarded as undemocratic. For instance, in cases of appointment and transfer, the main decision-makers are the judges, most of whom are not accountable to the masses and therefore can not be considered proper and responsible decision-makers. A distinction was made between appointments and the functioning of the judiciary. The executive may have no say but the position of the executive cannot be diminished when it comes to appointments.
Another criticism of the collegium system is that it has struggled to keep up with the stagnant vacancies. There were 143 vacancies out of 714 left almost 20 per cent vacant in 21 High Courts. This is as per the report of the Ministry of Law and Justice in 2004.
India’s 214th Law Commission also criticized the collegium. Laid “collegium” was not initially used by the Constitution and also came into existence after three judges’ cases. Dr B.R Ambedkar also expressed his displeasure regarding this system in the Constituent Assembly.
In the year 2009, the collegium system was criticised by Indian Law Commission. It said that nepotism and political privilege were rife in the working of the collegium system.
It has been nearly 8 years since the Supreme Court struck down the NJAC. But it made no reforms after the case. Instead, the court reverted to the old Collegium System based on an appointment mechanism and defended it.
All systems for a judicial appointment may have some advantages and disadvantages, therefore, no system can be perfect. However, this is the truth that the collegium of judges has not been performing the task of recommending candidates for appointment as judges satisfactorily. There are no criteria and openness followed by the Collegium.
The collegium ‘has been dilatory, arbitrary and smeared by favourites and the ‘present collegiate elitism is the vanishing point of democratic values in the justice pyramid.’Justice Iyer
To solve this issue of the collegium system the Indian government tried to bring National Judicial Appointments Commission (NJAC). But a five-judge Constitution Bench declared it unconstitutional.
The essence of democracy lies in its dependence, on transparency, accountability, and integrity of institutions. Without transparency, justice is an illusion. Hence, an independent body for the whole process of appointing judges is required. The judiciary needs to act independently not exclusively or else it will hurt the faith of coming generations.
 AIR 1977 SC 2328
 AIR 1982 SC 149
 (1993) 4 SCC 441
 AIR 1999 SC 1
 (2015) AIR SCW 5457