“Collegium System: Ensuring Transparency and Independence in Judicial Appointments

05 Nov “Collegium System: Ensuring Transparency and Independence in Judicial Appointments

SYLLABUS MAPPING:

GS-2-Polity-“Collegium System: Ensuring Transparency and Independence in Judicial Appointments

FOR PRELIMS:

What is the Collegium System in India, and how did it evolve?

FOR MAINS:

Explain the evolution of the Collegium System in India. How has judicial independence been impacted by the system’s implementation and its subsequent challenges?

What is the collegium system in the Indian higher judiciary?

The Collegium system is a system for the appointment and transfer of judges in the Supreme Court and High Court. It is not rooted in the Constitution. Instead, it has evolved through judgments of the Supreme Court.
Under the system, the Chief Justice of India (CJI), along with four senior-most Supreme Court judges, recommends the appointment and transfer of judges.
A High Court Collegium, meanwhile, is led by the incumbent Chief Justice and the two senior judges of the supreme court.
The government can also raise objections and seek clarifications regarding the Collegium’s choices, but if the Collegium reiterates the same names, the government is bound to appoint them to the post.

Collegium’s Composition and Functioning:

The Collegium System for the appointment of judges to the Supreme Court and High Courts is composed of: Supreme Court: The Chief Justice of India (CJI) and the four senior-most judges.
High Courts: The CJI, along with the senior-most judges of the relevant High Court, play a role in recommending judges for appointment to that court.
The Collegium recommends candidates based on seniority, merit, and integrity.

Constitutional Provisions for Judicial Appointments

Constitutional Appointment:

1. First Judges Case, 1981 (S P Gupta Vs Union of India): A seven-judge Constitution Bench held that the President of India is the final authority to appoint, and he need not follow the advice of the judges whom he consults.
It meant ‘consultation is not concurrence’.
2. Second Judges Case, 1993 (Supreme Court Advocates-on-Record Association Vs Union of India): A nine-judge Constitution Bench overruled the decision given in the SP Gupta Case and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
It accorded Primacy to the CJI in matters of appointment and transfers while also ruling that the term ‘consultation’ would not diminish the primary role of the CJI in judicial appointments.
The role of the CJI is primal in nature because this is a topic within the judicial family; the executive cannot have an equal say in the matter. (Article 50 of the Constitution of India: Separation of powers between Judiciary and Executive)
3. Third Judges Case (1998): The 1993 decision was reaffirmed with minor modifications in 1998, on a reference made by the President under Article 143 of the Constitution.
It was held that the recommendation of appointment etc, should be made by the chief justice of India and his four senior-most colleagues instead of the earlier two and is referred to as the Collegium.
Both the 1993 decision and 1998 opinion lay down that the senior most judge of the SC should be made as CJI.
4. Fourth Judges Case (2015): The constitutional validity of both the Ninety-Ninth Constitutional Amendment and the NJAC Act, 2014, was challenged in the Supreme Court in 2015.
A constitutional bench of five judges with a majority of 4:1 struck down the NJAC, declaring it unconstitutional and void, stating that it posed a threat to the independence of the judiciary.

Issues with the Collegium System:

1. Lack of Transparency: The Collegium’s decisions are made behind closed doors, with no public disclosure of the reasons for selecting or rejecting candidates, leading to allegations of arbitrariness and secrecy.
2. Delays in Appointments: Judicial vacancies in the Supreme Court and High Courts are often left unfilled for years due to slow and delayed recommendations by the Collegium, leading to significant backlogs in cases and a strained judicial system.
3. Absence of Fixed Criteria: There are no clear, standardized, and publicly accessible criteria for judicial appointments, allowing for subjective decision-making and leading to perceptions of inconsistency and unfairness in selecting judges.
4. Favoritism and Bias: The system has been criticized for promoting favouritism and bias, with concerns that appointments may be influenced by personal relationships or ideological alignments between judges rather than merit or qualifications.
5. Recommendations Not Binding on the Executive: Though the Collegium recommends candidates, the government can return its recommendations for reconsideration, causing delays and deadlock. This undermines the Collegium’s authority and creates a power imbalance between the judiciary and executive.
6. Gender and Regional Imbalance: The Collegium has faced criticism for the underrepresentation of women and regional imbalances in judicial appointments, limiting diversity and regional inclusiveness in the higher judiciary.

Way forward:

1. Revival of the National Judicial Appointments Commission (NJAC)
Revive the NJAC with safeguards to ensure judicial independence while including executive and legislative participation for greater balance and accountability.
Incorporate a diversity mandate to ensure broader representation in the judiciary.
2. Adopt an Open and Transparent Selection Process (UK Model)
Implement a transparent judicial selection process similar to the UK’s Judicial Appointments Commission (JAC), where criteria are public and the process is open.
Appointments should be based on merit, integrity, and diversity, with clear, standardized criteria and publicly disclosed reasons for recommendations and rejections.
3. Time-bound Recommendations
Set strict timelines for the Collegium or a new commission to make recommendations and decisions to avoid delays and judicial vacancies.
Adopt a deadline-driven process to ensure swift appointments and reduce case backlogs.
4. Respect for Judicial Autonomy
Ensure that judicial opinions in the appointment process are given due respect and independence.
Recommendations from the judiciary should be treated seriously, with limited room for reconsideration by the executive to avoid delays.
5. Address Diversity and Representation
Implement clear criteria for gender, regional, and social diversity in the judicial appointment process.
Encourage more women and individuals from marginalized communities to be considered for judicial roles.
6. Independent Oversight and Review Mechanisms
Establish an independent oversight body to review the functioning of the judicial appointment process, ensuring it remains transparent and accountable.
Ensure public access to the reasoning for decisions and consider input from legal experts, civil society, and the public.
7. Public Engagement in the Selection Process
Introduce public hearings or feedback mechanisms for high-profile judicial appointments, allowing greater stakeholder participation.
This enhances trust and allows for a more inclusive and well-rounded selection process.

Conclusion:

The Collegium System in India has resulted in delays, lack of transparency, and biases in judicial appointments, impacting the judiciary’s efficiency and public trust. To address this, reviving the NJAC with safeguards for judicial independence alongside a transparent, merit-based, and time-bound selection process is crucial. Clear criteria for diversity and regional representation should be implemented to ensure inclusivity. A reformed system with independent oversight and public engagement will enhance accountability, reduce delays, and ensure that judicial appointments are based on merit and integrity, strengthening the rule of law.

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Ritik singh