12 Oct The Collegium System
The topic is based on The Collegium System
The Article talks about the Indian Polity and Governance-Constitution significance of the Collegium System.
CJI UU Lalit has written to the government recommending Justice DY Chandrachud as his successor to the office of CJI. As per convention, the government writes to the outgoing CJI before his retirement and the CJI recommends the name of the most senior judge as the successor before his retirement. Justice D Y Chandrachud will take over as the next CJI on November 9. After he becomes the CJI, the Collegium will consist of 6 judges which are unusual and happened last in 2007. Generally, Collegium consists of 5 judges of the Supreme Court which includes the CJI
COLLEGIUM SYSTEM AND ITS NEED
- The appointment of judges is closely linked to judicial independence as any political interference in appointment can lead to direct or indirect political influence in the working of courts
- A judge should act without fear or favor. He should be impartial in conduct to strive for the highest standards in delivering judgments.
- Hence, it is only logical that appointments are made with the active involvement of the Judiciary and less of the Executive.
- To ensure this, the Collegium system was devised.
- It is the manner of appointing and transferring judges of the Supreme Court and High Courts.
- For appointment to the Supreme Court, the collegium consists of the Chief Justice of India along with 4 senior-most judges of the Supreme Court. For appointments and transfers in the case of High Courts, the Collegium consists of the Chief Justice of India along with the 2 senior-most judges of the Supreme Court.
- It does not find mentioned in the Constitution and has evolved through various judicial pronouncements.
ORIGIN AND EVOLUTION
- Article 124 of the Indian Constitution states that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and the High Court in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five 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.
- The Constitution does not provide any other detail on appointment other than the above article.
- It evolved through three significant cases- the first judge’s case, the second judge’s case, and the third judge’s case.
- These three cases established the norm that a collegium headed by the CJI will have primacy in the appointment of judges to the higher judiciary.
First Judges Case: S.P Gupta v UOI (1981)
- A seven-judge bench ruled that the word “ consultation” referred to in Article 124(2) of the Constitution does not mean concurrence. This implies that although the President will consult the constitutional functionaries, his decision was not bound to be in concurrence with them. This would mean that the ultimate power of appointment would vest with the Union Government and not the CJI in the event of disagreement between the constitutional functionaries
Second Judges Case: Supreme Court Advocates-on-Record Association Vs Union of India (1993)
- In this case, a nine-judge bench overruled the first judge’s case and evolved the Collegium system to make appointments and transfers to the higher judiciary. The system provides that the recommendations of judges for appointment should be made by the CJI in consultation with his two senior-most colleagues. The executive could ask the collegium to reconsider the decision if it had any objection to the name that was recommended but on reconsideration if the collegium again recommended the same names, the executive was bound to accept it and make the appointment accordingly. The second judge’s case hence gave primacy to the CJI in matters of appointment and transfers
Third Judges Case: In re Special Reference 1 of 1998
- The third judge’s case established the present collegium system as it exists today. It was held that “consultation with the CJI” means consultation with a plurality of judges. Thus the collegium began to be composed of the CJI and the four senior-most judges of the Supreme Court. The views of the judges were to be recorded in writing. The recommendations of the Collegium are then conveyed by the CJI to the Government of India. If two or more members of the collegium dissent, CJI should not persist with the recommendation. The Apex court stated that the principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court Bench. The Chief Justice of India and the senior-most puisne Judges, because of their long tenures on the Supreme Court, are best fitted to achieve this objective.”
- Judicial Independence: It makes the judiciary independent from political interference. This aligns with the doctrine of separation of power.
- Expertise: The executive does not possess apple knowledge for judicial appointments. CJI and other judges are better equipped to find suitable Judges for appointment to the Supreme Courts and High Courts
- Lack of transparency: All deliberations happen behind closed doors. Ruma Pal, a former Judge of the Supreme Court of India, stated that this system is one of the best-kept secrets in the country.
- Undemocratic: Judges are not elected by the people. Hence, they are not accountable to the general public. Therefore, the selection of judges by the collegium is undemocratic
- Promotes Nepotism: Sons and nephews of Judges are favored for an appointment. Former Chief Justice of India, R.M Lodha related to the appointment of judges in the High Court said “Every third High Court Judge is an Uncle”. This is a genuine problem and This system is a major reason for this.
- Inefficiency: Collegium has failed to prevent the increasing cases of vacancies of judges and backlog of cases.
The Collegium system needs to be replaced by a system that is transparent and open to public scrutiny. The Apex Court should come up with a written manual for appointments and records of all meetings in furtherance of appointments should be made public. This shall secure a rules-based process and a much-needed openness. As it is famously said, sunlight is the best disinfectant Hence, disclosure is the best solution.
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Plutus IAS current affairs 12 oct 2022