In India, the Collegium system is the system that is responsible for the appointment of new judges and transfer of existing judges of the Supreme Court and High Courts. This system is also known as ‘Judges Selecting Judges’. The appointment of judges in the judiciary is the most important aspect of judicial independence and ensures that decisions delivered by the judges are free from any direct or indirect influence of higher bodies including political or non-political. The independence of judiciary secures impartial decisions from judges and allows them to give decisions without any fear or favor. Across the globe, different countries have different methods or mechanisms to appoint judges to their courts; therefore, India follows the Collegium system to appoint judges or lawyers and transfer judges. In India, a system is established through provisions made in the Indian Constitution or a law enacted by the Parliament. As there is no particular word ‘Collegium’ in the Constitution of India, either original or any subsequent revisions, the Collegium system came into force according to the Judicial Pronouncement. The primary motive behind the introduction of this system is to strengthen and improve the overall appointment process of both Supreme Court and High Court judges.
The Chief Justice of India heads the Supreme Court Collegium and comprises four other senior-most judges of the Supreme Court. Currently, the members of the Supreme Court Collegium are the Hon’ble Chief Justice of India Mr. DY Chandrachud, senior-most judges including Hon’ble Justices Mr. Sanjay Kishan Kaul, Mr. Surya Kant, Mr. B.R. Gavai, and Mr. Sanjiv Khanna. On the other hand, every High Court has its own Collegium which includes the Chief Justice and the other four senior-most judges of that court. The names of judges recommended for appointment by a HC Collegium are first approved by the Supreme Court Collegium and then reach the government, which confirms whether the recommended names would be elevated or not. The Collegium is responsible for recommending the names for appointment as judges for either High Court or Supreme Court; therefore, this article highlights the process of appointing the judges as well as discusses the evolution of the Collegium system.
The nominating authority that appoints the judges on Collegium’s recommendation in India is the President. In order to be appointed as a Supreme Court judge, one should be a citizen of India and should have served as a judge for 5 years of a High Court or have served as an advocate for 10 years of a High Court.
The judges of the Supreme Court are appointed by the President. The Chief Justice of India is appointed by the President after consulting with the judges of the Supreme Court and High Court. The other judges of the Supreme Court are appointed after consulting with the Chief Justice and other Supreme Court judges. Initially, the Supreme Court Collegium members recommend the names of the judges to the central government for elevation as the Supreme Court judge. After confirmation from the Government, the recommended judges are elevated. The government has the authority to return the recommendation by Collegium for reconsideration. The Government is mandated to appoint the recommended judge after the Collegium reiterates its recommendation. The recommendations are taken into consideration as per the following criteria:
The Chief Justice of the High Court is appointed by the President after consultation with the CJI, other Collegium members, and the governor of the respective state. The candidate for the High Court CJ is selected from outside the respective state. The judges of the HC are also appointed by the President after consultation with the HC Collegium, SC Collegium, and the governor of the respective state.
The Constitution of India gives provisions to appoint the Supreme Court and High Court judges under Article 124 and Article 217. Article 124 (2) of the Constitution of India, 1949, deals with appointing Supreme Court judges. It 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 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 sixty-five years: Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice shall always be consulted…” Article 217 (1) of the Constitution of India, 1949, deals with appointing High Court judges. It states 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 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 of sixty-two years…” This illustrates that the judges are appointed by the President, after consultation with the Collegium members.
The concept of the collegium system evolved through the three judges cases that played a significant role in shaping the overall appointment of the Supreme Court and High Court judges.
In this case, a seven-judge bench of the Supreme Court gave a decision related to the provisions regarding the judge's appointment and introduced the concept of the Collegium system in India. It ruled that the word ‘consultation’ under Article 124 of the Indian Constitution does not mean ‘concurrence’. In addition to this, the SC bench stated that a High Court judge can be transferred to another High Court in any state without their choice. Moreover, it ruled that “CJIs opinion is not binding on the President”.
In this case, a nine-judge bench was constituted to adjudicate what was held in the S.P. Gupta vs. Union of India, ‘First Judge’s Case’, this bench of the Supreme Court with a majority of 7:2 overruled the aforementioned judgment. The bench redefined ‘consultation’ as ‘concurrence’ and stated that CJI’s consultation is binding on the President.
In this case, a five-judge bench of the Supreme Court rules that “the Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four senior-most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior-most puisne Judges of the Supreme Court."
Supreme Court Advocates on Record Association vs. Union of India (2016)
In this case, the Supreme Court ruled by a majority of 4:1 that the National Judicial Appointments Commission (NJAC) Act, 2014, and the 99th Constitutional Amendment Act, 2014 are unconstitutional. Justices Khehar, Lokur, Joseph, and Goel were in a majority of the decision whereas Justice Chelameswar disagreed and stated that “Independence of such fora rests on two integers - Independence of the institution and of individuals who man the institution”.
The collegium system has been under question in recent times. The independence of the judiciary makes the judiciary fearless while administering justice. The Constitution itself is an advocate of the judiciary’s independence of not only the Supreme Court or High Courts but also for the Subordinate Courts. It has been held many times by the Supreme Court that the judiciary’s independence is the will of the Indian constitution. Arguments and debates on the system of appointing judges may be questioned, however, there is no doubt that the judiciary must stay independent and free from pressure.