Collegium System in India: Evolution, Criticisms & Reform

• The Supreme Court has reached its full strength of 34 judges with the swearing-in of Justices Alok Aradhe and Vipul Manubhai Pancholi. The process of appointing a judge of the Supreme Court is governed by the Collegium system, established through a series of Supreme Court judgments.

About Collegium System

• It is the system by which judges of the Supreme Court and the High Court are appointed and transferred by other judges.

Composition of Collegium System

• Supreme Court Collegium: Chief Justice of India (CJI) + four senior-most Supreme Court judges.
• High Court Collegium: Chief Justice of the High Court + two senior-most High Court judges.

Evolution of the Collegium System

• First Judges Case (1981): 
  • SC held that the CJI does not have primacy over the opinion of the Chief Justice of the HC in the matter of appointment and transfer of judges.
  • The CJI and Chief Justice of the High Court are equally important in the consultation process.
  • Held that “consultation” did not mean “concurrence,” giving the executive the final say.
• Second Judges Case (1993): 
  • SC overruled the First Judge Case and held that the CJI has the greatest significance in appointing and transferring judges.
  • The Chief Justice of the HC must consult the CJI before recommending to the government.
  • Established the Collegium System, transferring appointment power to the judiciary.
• Third Judges Case (1998):
  • SC held that the recommendationwithout consultation of the collegium by the CJI for the appointment of SC and HC judges is not binding on the government.
  • Expanded the Collegium to five judges, reinforcing judicial primacy.
• Fourth Judges Case (2015):  
  • SC upheld the primacy of the collegium.
  • The NJAC Act was struck down with a 4:1 majority in 2015 as unconstitutional.
    • Dissenting View (Justice Chinamasa): Criticized collegium secrecy & favored transparent NJAC.

How are Judges Appointed in India?

• Collegium recommends appointments and transfers.
• The names for appointments by the HC collegium reach the government only after CJI and SC collegium approval. The government can return the name for reconsideration.
• Law Ministry can raise objections but must notify appointments if the Collegium reiterates its choice. Govt’s role is limited to conducting an inquiry through the Intelligence Bureau (IB).

Memorandum of Procedure (MoP) for Appointment of Judges in India

• The MoP was formulated after the NJAC was struck down by the SC.
• It is an agreement between the judiciary and government that outlines the criteria for appointing judges to the SC and HCs.
• MoP requires the collegium to take into account several factors: Experience & qualifications, Integrity and character, Judicial temperament & Representation from different regions and communities.
• It requires the government to give reasons for rejecting a recommended name.
• The MoP is a step in the direction of ensuring the transparency and accountability of appointing judges.

Criticism of the Collegium System

• Opaque and Unaccountable: No formal records or transparency in decision-making.
• Favouritism and Nepotism: Risk of judicial appointments based on personal networks.
• Not Constitutionally Mandated: The system emerged from judicial rulings, not legislative or constitutional provisions.
• Limited Participation: Critics view the collegium as a closed judges’ group with no input from stakeholders like the executive, legislature, bar, or public in judge appointments.
• Lack of Oversight: Accountability, review, and grievance redressal mechanisms are absent in the collegium system, with no room for judicial review of its decisions.

National Judicial Appointments Commission (NJAC)

• Proposed by: Justice M.N. Venkatachaliah Commission in 2000.
• Established by 99^th Constitution Amendment Act, 2014 under NJAC Act, 2014.

Composition of NJAC

• CJI (Chairperson) + 2 senior-most Supreme Court judges.
• Union Minister of Law and Justice.
• 2 eminent persons (non-judicial members) from civil society, nominated jointly by the Prime Minister, the Chief Justice of India and the Leader of the Opposition.
• Veto Power: Any two NJAC members could reject a recommendation.

Significance of NJAC

• Balanced Power Structure: Ensures judiciary, executive, and civil society participation.
• Transparency & Accountability: A multi-stakeholder model reduces opacity, aligning with ARC’s support for participatory appointments.
• Checks Nepotism: Ends the judges-only selection process, addressing favoritism concerns flagged by the Law Commission’s 230th Report.
• Public Trust & Legitimacy: A diverse appointment body enhances public confidence, as advocated by CPR and ARC-II.
• International Best Practices: Aligns with judicial appointment models in other democracies.
  • United Kingdom: Judicial Appointments Commission with a mix of judges, legal professionals and lay members.
  • South Africa: Judicial Service Commission advises the President, including members from the executive, legislature, and judiciary.
  • France: High Council of the Judiciary manages appointments with Minister of Justice input.

Reasons for Striking Down of NJAC (2015)

• Threat to Judicial Independence: Violates separation of powers and the Doctrine of Stare Decisis (A legal principle that requires courts to follow precedents set by higher or previous rulings in similar cases), leading to its annulment in the 2015 SC AoR Assn. Case.
• Eminent Person Ambiguity: Lacks clear criteria for selection, raising concerns over vagueness.
• Veto Power Concerns: Non-judicial members could undermine judicial autonomy.
• Politicisation Risk: Possible political affiliations of eminent persons could lead to executive interference.
• Lack of Standard Operating Procedures: Absence of clear guidelines, tie-breaking rules, and safeguards against decision-making deadlocks.
• Basic Structure Violation: SC viewed NJAC as undermining judicial primacy, a core feature of the Constitution.

Why the NJAC Needs Reconsideration?

• Judicial Primacy Retained:
  • NJAC still ensured judicial dominance (3 out of 6 members).
  • It proposed that the government would be bound by the recommendations of the NJAC.
  • Instead of striking it down, modifications could’ve been introduced, as suggested by Fali Nariman.
• Democratic Mandate: NJAC was passed by Parliament with overwhelming support (543 MPs, with only one dissent) and ratified by 16 state legislatures, showing federal consensus.
• Global Comparisons: Many democracies like the UK and South Africa involve a mix of judiciary, executive, and civil society rather than unilateral judicial control.