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By: Shivalika Midha, Advocate

The Collegium System was introduced in 1993 by the former Chief Justice of India for the nomination and transfer of Judges. The Collegium System is neither an act nor a constitutional provision, but it has been developed as time passed through the various judgments by the Supreme Court. Until 1973, the Chief Justice of India and other judges of the Supreme Court was appointed by the President of India under Article 124 and 217 of the Constitution of India. By maintaining the judiciary independent and preventing the Chief Justice of India from imposing his or her personal view regarding the appointment of Judges, the Collegium System was introduced to uphold the fundamental principles of the Constitution. 

The Collegium System is established from the three landmark cases referred to as the three judges’ cases. A petition was filed in the Supreme Court in 1982, known as the S.P. Gupta v. Union of India or First Judges case. In this case, two issues were discussed, The first was whether the word ‘consultation’ in article 124 means ‘concurrence’. The Supreme Court dismissed it and denied saying. The Supreme Court’s advice was not required for the President to base his or her choice. Another issue was the Supreme Court ruling that the High Court judge can be transferred to any other High Court against his or her will. A petition was filed in 1993, known as the Supreme Court Advocates on Record Association (SCARA) v. Union of India or the Second Judges Case. In this case, the nine-bench judge reversed the decision of the First Judges case. According to the ruling, the Chief Justice of India should be given the responsibility of electing judges. The court held that the word ‘consultation’ actually means ‘concurrence’ and a Collegium System was appointing judges was implemented. The Collegium System was established to display the collective opinion of the most senior people participating in the process of judicial nomination rather than an individual opinion. In Re: Special reference of 1998 also known as Third Judges Case, the President questioned the definition of consultation under articles 124, 217, and 222 of the Constitution about the Supreme Court. In the context of Judicial appointment, the three judges’ case reaffirmed the superiority of the judiciary over the executive. On the recommendation of the President, the Collegium System body was increased to five members for the appointment of the Supreme Court judges which will include the Chief Justice of India and four- Senior judges. In this case, the Supreme Court laid strict guidelines for the appointment which is known as the Collegium System. In this system, the Collegium recommends the names to the Central Government, and then the Central Government sends the proposed names for consultation. The Collegium System has faced much criticism from the public and the authorities. The issues with the Collegium System are that it lacks transparency, and accountability, expands favoritism and nepotism, the public has no idea when the Collegium meets or there are no records related to the meeting. 

In this entire process, the government’s only involvement is in proposing that the Intelligence Bureau (IB) investigate if a lawyer is to be raised to the position of judge on the High Court or Supreme Court. The Collegium’s selections are subject to the government’s questions and objections, but if the Collegium reaffirms the same names, the government is obliged by Constitution Bench rulings to appoint those individuals as judges.

To eradicate the mishaps of the Collegium System, the Parliament amended the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] and passed the National Judicial Appointments Commission Act, 2014, (NJAC) which came into force on 13th April 2015. The NJAC would consist of the Chief Justice of India, the two Senior judges of the Supreme Court, the Law Minister, and two eminent persons who are selected by the Selection Committee. A series of petitions were filed in the court, contesting the NJAC Act’s constitutionality and the 99th Constitution Amendment. The case was Supreme Court Advocates-on-record Association v Union of India also known as the Fourth Judges Case. The Court observed that the concept of the independence of the judiciary is harmed through this act as it has the involvement of the political executives. The five-judge bench strikes down the NJAC Act in a 4:1 ratio. It was said that the Collegium System will be continued in an improved manner. After the striking down of the NJAC Act, a Memorandum of Procedure (MoP) was introduced which means an agreement between the judiciary and the government regarding the appointment of the judges. 

Both the Supreme Court and the Central Government have been playing a war of words for a long time on the appointment of Judges. 

The Union Law Minister Kiren Rijiju stated that the Collegium System is opaque and not accountable. He stated that in eight years of Prime Minister Narendra Modi’s government, not a single step has been taken that will harm the independence of the Judiciary. He said the government could have taken other steps after the struck down of the NJAC Act but it hasn’t as it respects the Supreme Court’s decision but that doesn’t mean that the government will be silent forever. The Collegium has been under the spotlight for a long period over the recommendation of the judges and the delay in the process. On 11th November, a two-judge bench of the Supreme Court issued a notice to the Justice Secretary and the Additional Secretary (Administration and Appointment) in the Ministry of Law and Justice to respond before November 28 on why the government was dragging its feet on the Collegium recommendations. 

The judiciary has responded in the meantime, both within and outside the courtroom. The Supreme Court is currently hearing a contempt suit filed by the Advocates Association of Bengaluru because the Centre has been holding onto 11 names that the Collegium reaffirmed, the oldest of which is from September 2021. The group claimed that by failing to do so, it had violated the deadlines set forth by the Supreme Court. Despite being filed in October of last year, the lawsuit wasn’t heard until this January. In its last ruling dated November 11, the Supreme Court emphasized that, regardless of its objections, the Union government must appoint a judge if the Collegium recommends him. Therefore, the bench stated, “keeping the names pending is something not acceptable.” It sent a notice to the Union law secretary requesting an explanation for the delay in appointments.

The Supreme Court on Thursday stated that the Collegium System and its Memorandum of Procedure (MoP) are the “final word” until the government introduces a new statute on judicial appointments.

To conclude we can say that the striking down of the NJAC Act left many questions unanswered. In terms of judicial accountability, it may be said that the NJAC is one step ahead of the Collegium System. But in practice, there is a fine line between judicial accountability and compromising the judiciary’s independence. The concern here is not who makes the appointment but the way the appointment is made. The balance between judicial independence and accountability must be thoroughly reviewed.