Collegium System: The Evolution and Challenges in India’s Judicial Appointments

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The Role and Recommendations of the Supreme Court Collegium

Supreme Court collegium has recommended Chief Justices for seven High Courts. The collegium, led by Chief Justice of India DY Chandrachud, has recommended Chief Justices for the High Courts of Gujarat, Bombay, Karnataka, Andhra Pradesh, Telangana, Odisha, and Manipur. Justice Sunita Agarwal has been recommended as the Chief Justice for the Gujarat High Court, making her the upcoming country’s only woman Chief Justice in a High Court.

The collegium system is an innovation of the Indian Judiciary, empowering them in the appointment and transfer of judges in the High Court and Supreme Court. However, the appointment of the Chief Justice of India is based on seniority of appointment in the Supreme Court.

The collegium system has evolved over time. In the second judge’s case (7:2), the Supreme Court held that the appointment and transfer of High Court and Supreme Court judges would occur through the collegium system, and the consultation would amount to consensus. The composition of the collegium is as follows:

1. Chief Justice of India + 2 senior-most judges for the Supreme Court.

2. Chief Justice + 1 senior-most judge for the High Court.

In the third judge’s case in 1998, the following recommendations were made for the appointment of judges:

1. The Supreme Court collegium would comprise the Chief Justice of India and the four senior-most judges.

2. The Chief Justice + 2 senior-most judges would constitute the collegium of the High Court.

3. The collegium would recommend names with consensus. In case of a dispute in the collegium, no name would be recommended.

4. In the case of a judge’s transfer from one High Court to another, the consensus of both is necessary.

5. The Chief Justice of India alone cannot make a decision, but he/she has veto power over a name.

6. If a name of an eligible judge is not recommended, the collegium should provide a reason.

7. If a judge sends a name without the consensus of the collegium, their appointment would not proceed without the government’s approval.

8. The collegium should provide the recommended names in writing to the government.

9. If the Chief Justice of India does not consult the collegium, the transfer of the judge will be reviewed by the judiciary.

The collegium system has some shortcomings, including a lack of transparency, potential nepotism, absence of clear rules for judge recommendations, and bureaucratic obstacles in the recommended names.

To address these issues, the Law Commission has proposed the National Judicial Appointment Commission (NJAC) for the appointment and transfer of judges. The NJAC, consisting of six members, including the Chief Justice of India, two senior-most judges, the Law Minister, and two eminent persons, would have constitutional backing. However, the NJAC faced opposition for potentially compromising the independence of the judiciary and did not receive approval.

In other countries, the process of electing judges differs. In the USA, a committee of nine judges recommends candidates, and the president makes the appointment. In Britain, a 15-member Judicial Appointment Committee appoints judges.