The Collegium system: Pros and Cons

Overview

Article 124 of the Constitution of India deals with judicial appointments. It lays down that the appointment of Supreme Court judges should be conducted by the President after consultation with judges of the High Courts and the Supreme Court as the President may deem necessary.[1] The appointment of High Court judges is dealt with by Article 217 which lays down that the High Court judges should be appointed by the President after consultation with the CJI and the Governor of the state.[2] The collegiums system of appointment of judges was born through three cases which interpreted these constitutional articles and are together called "Three Judges Cases". The first case of these - S P Gupta v. President of India and others[3] (1981), held that the "primacy" of the CJI's recommendation to the President can be refused for "cogent reasons". This clearly established executive supremacy over judiciary in judicial appointments. This continued for 12 years. Then came the 9 judge bench decision of  Supreme Court Advocates-on Record Association vs Union of India case — the "Second Judges Case" (1993). This established the collegium system. It overturned the S P Gupta judgment, saying "the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Thus it would not be wrong to say that -The collegium system is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.'[4]

This paper shall seek to examine the intricacies of the collegium system including its working. It would begin with an explanation of the main features and functioning of the collegium system, and then proceed to evaluate the advantages and disadvantages of such a system over other Judicial accountability systems. The criticisms would include arguments regarding delay in filling vacancies, a debatable drop in judicial standards and the issue of supremacy of the judiciary in deciding appointment matters.

Criteria for appointment evolved through SC judgements

Article 124(2) has the word 'consultation'. This word has been construed since the commencement of the constitution in such a way that a proposal recommending the judge was initiated by the Chief Justice of India. This recommendation was mostly in consultation with his senior colleagues. This was then taken into account by the President while deciding on the appointment and if such recommendation was agreed upon, the appointment was made. [5] The 1974 case of Shamsher Singh vs. State of Punjab[6] held that the approval of CJI is must in appointing the Judges of High court and Supreme Court. This stand of the Supreme Court continued till 1981.

This position was altered by the landmark judgment of S. P. Gupta vs. President of India and others i.e. the 'First judge case'. The core concern of this case was regarding the ambit of the power of the executive i.e. the central government in appointment of judges /non-appointment of additional judges and transfer of High court judges under article 222(1) and the constitutionality of such transfers.[7]  This case held that executive has primacy over judiciary in such appointments and transfers. It further held that the CJI's recommendation can be refused only on 'cogent' grounds and it construed 'consultation' to not mean 'concurrence'.[8] It also held that judicial primacy is not found in the constitution and thus indulged in literal interpretation of the constitution.  This criterion continued for the next twelve years.

The position underwent a change in 1993 by the SC through the case of Supreme Court Advocates-on-Record Association vs. Union of India. The bench over-ruled the first-judges case with the majority of 7:2. It regarded independence of judiciary to be of paramount importance and devised a criterion accordingly.[9] Thus CJI's say was held to be of primary value through this judgment. It further held that the CJI has to consult with two-senior most judges and has to take into account their opinion before recommending and this recommendation should be given effect by the executive.[10] The main power passed into the hands of judiciary and the role of executive became a mere formality. [11] This case established the collegium system in India. But the role of the CJI and the senior-most judges and the weight-age that should be given to their opinion was not illustrated with clarity. This created a confusion regarding the same. The CJI was taking the decisions unilaterally without proper consultation.[12] The executive i.e. the President became a mere approver without any powers in the whole system. [13]

The same stand as taken by the SC in 1998 in the Third Judges Case, which clarified the second judges case through a Presidential reference. The term 'consultation' was interpreted and clarified through nine guidelines. The clarifications included a differential collegium which stated that the CJI will have to consult his four senior-most colleagues for SC appointments and   two senior most colleagues for HC appointments. [14]It did not provide for a comprehensive reasoning for this differential size of collegiums except giving the redundant reasoning of selecting the most suitable and the most talented candidate for higher judiciary and upholding the value of independence of judiciary. [15]

Analysis and criticism of Collegium System

The stand taken by the SC for establishing the collegium system was regarded as undemocratic in the sense that the main decision makers in cases of appointments and transfers were the judges i.e. the chief justice and two senior most judges who are not accountable to the masses and hence can't be regarded as proper and responsible decision makers.[16] Thus the power cannot be concentrated in their hands. A distinction was made between appointments and functioning which said that in the matters pertaining to the functioning of judiciary, the executive can have no say but when it comes to appointments the role of executive cannot be reduced or disregarded.[17]

One of the other problems with the collegium system is that it failed to keep pace with the stalled vacancies due to various reasons of caste and other political and communal reasons.[18] According to Ministry of law and Justice in 2004 there were 143 vacancies in 21 High Courts against sanctioned strength of 714 leaving almost 20 percent vacant.[19] The other loophole with the system is regarding the merit of judges which cannot be ascertained just on the basis of seniority. This system by virtue of being far from the public eye cannot easily determine merit. There is no intelligence gathering mechanism to collect and keep a check on the professional and personal background of potential appointees.[20] The biggest loophole in this system is of the fact that inspite of being a democracy, the judges appoint judges in India.

The collegiums system was also criticized by the 214th Law commission of India on constitutional grounds. It by analyzing the collegium system on constitutional grounds said that the word 'collegium'was not used by the constitution originally and the S.P Gupta case brought about its usage by using it. The judgement used the word collegium under Para 29- 'There must be a collegium to make recommendations etc.'[21] The report said that addition of words is not permissible under the interpretive jurisdiction of the Supreme Court. [22]The court has to literally interpret the constitution and not add words to give effect to the interpretation.[23] If the constitution makers had intended the formation of a committee for the appointment of judges, they would have expressly provided for the same in the constitution itself. Even after envisaging the separation of executive and judiciary under article 50, the constitution upholds the underlying ideal of democracy.[24] Thus the constitution makers provided for Article 124(2) and Article 217 for appointment of judges. Thus it did provide for independence of judiciary which is indeed an important value to uphold but it in no way allowed for judocracy which the second judges case seems to promote. [25]The collegiums system was also criticized by the Law Commission of India in 2009 when it said that nepotism and personal patronage is prevalent in the functioning of the  collegium system.[26]By giving judiciary a dominant role, there exists no system of checks and balances which is essential to a democracy.

According to Article 74 of the Constitution of India 'The President should always act on the aid and advice of the Council of Ministers'. [27]However the two judges cases have held that the consultation with the CJI means a collegium which consists of the CJI and two or four judges as the case may be. Thus the cases held that the Chief justice of India should consult the collegium while the constitution says that the CJI and the judges should be consulted by the President.[28]  

The balance of power of executive and judiciary as provided by the constitution through Article 124(2) and 217(1) has been disturbed by the Second Judges case the Opinion of the Supreme Court in the Presidential Reference. Former CJI , Shri Justice J. S. Verma who wrote the judgment in the second judges case, expressed in an interview to the Frontline Magazine in 2008 issue that - 'My 1993 judgment, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required. My judgment says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary, both taking part in it'.[29] He further said that there are two judgments that have to be adjudged i.e. the legal acumen of the candidates and their antecedents. The judiciary is the best judge of their legal acumen but it is the executive that can judge the antecedents of a candidate in a better way. [30]Thus different branches of the government should take care of different aspects and assume dominance respectively in terms of selection of candidates. Thus both of them should function together for efficient selection of candidates. Parliamentary Standing Committee on Law and Justice which has also recommended scrapping the present collegiums system. [31]

The Law Commission of India in its 214th Report, recommended two ways to do away with the collegiums system- reconsideration of three judges cases by the SC or to enact a law which restores the primacy of the CJI along with the power of the executive in deciding on appointments.  [32]

Even after facing all the criticisms, the collegiums system is the best when it comes to upholding independence of judiciary. It might seem opaque but it is the best way to ensure that judiciary is kept out of politics and is kept away from outside interference.

Comparision with other judicial commissions for appointment

The NJAC act was passed in 2014 by both houses of the parliament. The constitution was also amended so as to enforce the act. But its constitutionality was challenged in the SC and it was later declared unconstitutional.[33] The NJAC comprises of three members outside the judiciary and three members from the judiciary.[34] The members can be nominated by both the government and the opposition so as to make it divers.  The members enjoy veto power such that if two members veto a decision, the matter gets dropped.[35] Such commission was introduced so that both executive and judiciary have powers in the process of judicial appointments. But it doesn't provide solutions to all the criticisms faced by the collegium system. If merit was a concern for the collegium system, non-meritorious persons can be recommended by the NJAC as well even on the basis of caste, religion etc. [36] It does not take into consideration the age old convention of appointment of senior most judge of the SC as the CJI which the collegium system clearly takes into account. The problems of collegium system related to lack of transparency, no proper consultations with the Bar, favouritism, lack of consideration to merit etc is not solved by the Judicial accountability commission.[37]

The Judicial accountability commission was mainly challenged on the ground of violating the basic structure of the constitution. But its biggest criticism was the danger to independence of judiciary. By allowing a substantial say to the political class in judicial appointments, the commission clearly dilutes the principle of independence of judiciary.[38] The collegiums system is unarguably the best possible solution in this regard. It regards independence of judiciary to be of utmost importance by allowing for no political interference.

The most efficient option to do away with all the problems of both the JAC and collegiums system could be a full-tie consulting body, independent of both government and judiciary, constituted to select judges. The body could work in a transparent way by publically laying down a scientific mechanism of selection and duly advertising vacancies and evaluating candidates on the criteria laid down. This was suggested in the petition filed by advocate Prashant Bhushan and the Centre for Public Interest Litigation against the NJAC Act. [39]

Conclusion

The collegium system as established by the three-judges cases specially the second judges case and clarified by the third judges case, suffers from certain problems which include lack of transparency, non-accountability etc, but its biggest loophole is the question regarding its constitutionality. The basic criterion of appointment of judges in this system is the one of independence of judiciary which is held to be of paramount value. Thus the collegium system of appointment and transfer is not the most efficacious one as it was criticized by Justice J.S Verma, the very author of the judgment who said that it was being misused and its working entailed certain serious questions which cannot be regarded as unreasonable.

The judicial accountability commission by giving both the executive and judiciary a role to play in the process of appointment of judges, tries to solve mainly the problem of accountability but it entails its own set of loopholes and is still unable to address most of the concerns with the collegium system.  The commission holds a big danger to the independence of judiciary, an aspect in which the collegiums system excelled and thus it wins over the judicial accountability commission on this account.

The SC in the NJAC judgment formulated four areas in which the collegium system could improve so as to make it more efficacious. This included- transparency, an eligibility criteria, a secretariat to assist the collegium and dealing with complaints against persons being considered for appointment.[40]As put by Justice Khehar, these improvements have to be within the parameters of earlier practices. These improvements were suggested after inculcating the suggestions of the government, eminent persons from legal fraternity etc. But the question of these suggestions evolving a new system or retaining the earlier system with certain alterations still remains unanswered. 

BIBLIOGRAPHY

Statutes

• Constitution of India
• National Judicial Appointments Commission Bill, 2014

Law Commission of India reports

• Law Commission of India Report No. 214 'Proposal for Reconsideration of Judges cases I, II and III', November 2008
• Law Commission of India Report No. 230 'Reforms in the Judiciary – Some Suggestions', August 2009

Cases

• Shamsher Singh vs. State of Punjab 1974 AIR 2192
• S P Gupta v. President of India and others, AIR1982SC149
• Supreme Court Advocates-on Record Association vs Union of India 1993 4 SCC 441
• In re Presidential refrence  AIR 1999 SC 1
• Supreme Court Advocates-on-Record - Association and another v. Union of India, Writ Petition (civil) no. 13 of 2015

Articles

• Shubham Rathi, Judicial Appointments in India: Imperatives for Reforms, Journal of Politics & Governance, 3, 2014
• Vaidya Gullapalli & Jayaprakash Narayan,, A National Judicial commission Judicial appointment and oversight
• Prof.Y.P.Rama Subbaiah & Dr.K. Sivananda Kumar, Judicial Appointments and Some Disappointments:  A Threat to Independence of Judiciary, 2014
• Rohan Tigadi, Judocracy v. Independence of the Judiciary , 2012

Online articles

• Krishna PS, NJAC vs collegium: The arguments and counter-arguments, Business standard, October 16, 2015
• Shreeja Sen, Supreme Court identifies four ways to improve collegium system, Live Mint, November 4, 2015

[1] Art 124, Constitution of India
[2] Art 217, Constitution of India
[3] AIR1982SC149
[4] Supreme Court Advocates-on Record Association vs Union of India 1993 4 SCC 441
[5] Shubham Rathi, Judicial Appointments in India: Imperatives for Reforms, Journal of Politics & Governance, 3, 183, 2014
[6] 1974 AIR 2192
[7] S P Gupta v. President of India and others, AIR1982SC149
[8] Ibid
[9]Supra note 4
[10] Ibid
[11] Vaidya Gullapalli & Jayaprakash Narayan,, A National Judicial commission Judicial appointment and oversight, available at-
[12] Law Commission of India Report No. 214 'Proposal for Reconsideration of Judges cases I, II and III', November 2008
[13] Ibid
[14] In re Presidential refrence  AIR 1999 SC 1
[15] Prof.Y.P.Rama Subbaiah & Dr.K. Sivananda Kumar, Judicial Appointments and Some Disappointments: A Threat to Independence of Judiciary, 2014,  available at
[16] Law Commission of India Report No. 214 'Proposal for Reconsideration of Judges cases I, II and III', November 2008
[17] Ibid
[18] Supra note 5
[19] Ibid
[20] Supra note 5
[21] Supra note 7
[22] Supra note 16
[23] Ibid
[24] Rohan Tigadi, Judocracy v. Independence of the Judiciary , 2012, available at
[25] Ibid
[26] Law Commission of India Report No. 230 'Reforms in the Judiciary - Some Suggestions', August 2009
[27] Art 74, Constitution of India
[28] Supra note 16
[29] Supra note 26
[30] Ibid
[31] Ibid
[32] Supra note 16
[33]Supreme Court Advocates-on-Record - Association and another v. Union of India, Writ Petition (civil) no. 13 of 2015
[34] National Judicial Appointments Commission Bill, 2014
[35] Ibid
[36] Krishna PS, NJAC vs collegium: The arguments and counter-arguments, Business standard, October 16, 2015, available at
[37] Ibid
[38] Ibid
[39] Apoorva Mandhani, PIL against NJAC: Centre for Public Interest Litigation demands direction for establishment of a 'broad-based full-time body for the selection of the judges', Live Mint, February 14, 2015, available at < http://www.livelaw.in/pil-njac-centre-public-interest-litigation-demands-direction-establishment-broad-based-full-time-body-selection-judges>
[40]Shreeja Sen, Supreme Court identifies four ways to improve collegium system, Live Mint, November  4, 2015, available at
 <http://www.livemint.com/Politics/lXZxASF3QwbwOp6wXM5VvN/SC-identifies-four-points-for-considering-improvement-of-col.html>