THE COLLEGIUM SYSTEM IN INDIA: A CRITICAL AND COMPARATIVE

ANALYSIS WITH SYSTEMS IN OTHER COUNTRIES.

INTRODUCTION

The democratic system stands on three important pillars which are crucial in their own way.
Out of them, the judiciary is treated the most essential. “Justice must not only be done – it
must be seen to be done.”It has always been an essential part of the judiciary that its
individual judges are free and impartial of all the foreign pressures and of one and other. This
is done to ensure that the people who seek their help for justice i.e. is the public can believe
in them and be confident of the judiciary that they would address their cases without any
biasness and in accordance the law of the country.

Judicial Independence is a concept that demands the judicial powers given to the judges must
be free the interference of the media, the State, litigants, powerful personalities or large
companies to ensure that the Rule of Law is upheld in the country. This an important aspects
as more often than not

This is considered important as most of the times the cases decided are between citizens and
the State and citizens and powerful entities. A number of devices are adopted by the
Constitution of India to ensure the judiciary has independence in keeping both the doctrines
of Constitutional and Parliamentary sovereignty.

The independence of judiciary is also seen in the process of the judicial appointment in the
country. It was on 28th January 1950 that the Supreme Court of India. Collegium system is
the system followed to appoint and transfer the judges of the Supreme and the High Courts.
The system consists of the Chief Justice of India and four senior most judges of the Supreme
Court who together commend the appointment and transfer of judges in India. The transfer
and appointment of judges are not mentioned in any Act of the Parliament or Constitutional
provision, it is exclusively to the Collegium system.

STATEMENT OF PROBLEM

The measures and safeguards for accountability, transparency, demographic representation

and gender equality that are the pillars of democracy should not be looked down upon by the
collegium system. To establish the objective maintaining the credibility and legitimacy of the
collegium system, the process of appointment of judges must be transparent and reliable.By

1|Page
just stating that the members of the collegium will act in a transparent manner doesn’t assure
transparency. It must be demonstrated through the process of selection of judges adopted by
the judiciary. A detailed set of rules and regulations must be set by the collegium urgently
which will supervise the conflicts arising among the members of the collegium who are
involved in the selection of judges.

This non-transparency of the system results on the creation of an “old boys’ club” as the
composition of the High Courts which include largely male, upper caste, former practicing
lawyers. This renders it way into the system as this the lot from where the Supreme Court
judges will be appointed. At the end of this, a cycle of privilege is created where the same
judges find themselves in the topmost ranks of the seniority in the Supreme Court who are
eventually to decide the subsequent appointments to the High Courts.

LITERATURE REVIEW

1. “Impeachment of Judges: A Theoretical Stroke on Judicial Accountability” (Sayak

Chaudhuri): In this paper the author emphasis on the process in which the judges of the
Apex Courts are impeached. They find the mechanism is overly complicated making the
impeachment of dishonest judges a difficult work. Various discussions and motions in the
Parliament by the Bar Council for the effective eviction of such judges only adds to the
difficult. Judges play an important role in deciding the position of the country in the global
standards. The author conducted this study to analyse the level of judicial accountability
and difficulty of impeachment of disobedient judges.
The research gap that exists is the author did not discuss about the lack of transparency in
the system of appointment of judges which in turn enhances the power of the judiciary
making it much for difficult to remove them from their position of power.
2. “Judicial Activism in India: A Necessary Evil”(Arpita Saha): According to the author
various debates have been set off by the judges of the Supreme Court and High Court on
the issue of Judicial Activism. In the history, various learned people have given varied
meaning to judicial activism which are different as well as conflicting. Yet, the true
essence of judicial activism remains a conundrum. This study was carried out by the
author in order to bring out the true principle of judicial activism and identify its
consequences in the present developing society.
3. “A Review of the Impeachment of Judges in India and the United States: More
Political than Judicial?”(Divyanshu Kr. Srivastava & Sooraj Sharma) The authors

2|Page
 discuss about the judiciary being one of the three pillars of a democratic state. They say
that the Indian and American political and judicial scenario are quite similar. Many
provision of the American Constitution inspired the Indians which led to an inflexible
process of judicial impeachment. This was done to maintain a balance between judicial
autonomy and accountability.
The research gap that has arisen is that the American system has a proper procedure for
the appointment of judges and the method of checks and balances prevents giving more
power to judiciary. This is something the Indian system could draw inspiration from.

RESEARCH QUESTIONS

1. How did the Collegium System in India come into existence and how has it developed
overtime?
2. What is the significance of the National Judicial Appointment Commission and was it
right for it to be struck down as unconstitutional?
3. How is the system of appointing judges to Apex Courts different from other countries?

RESEARCH OBJECTIVES

1. To gather an idea about the time, mind set and situation of judiciary when the collegium
system arisen two decades ago and its significance.
2. To understand the need to develop new methods and processes which will determine the
appointment of the higher judiciary in order to make it more transparent and accountable.
3. To draw a comparison of how other countries are doing a more efficient and publicly
acceptable work by informing their citizens about the process and laying down set criterias
for the appointment of their judges.

THE WORKING OF THE COLLEGIUM SYSTEM

The working of the system known to us is that the collegium sends the recommendations of
the names of the lawyers or judges to the Central Government and the Central Government
also send the Collegium a few of preferred names. The final investigation and fact checking
of the suggested names is done by the Central Government who then resends it to the
Collegium. The Collegium considers the suggested names by the Central Government and
resends it to them for a final approval. If the same name is resent by the Collegium then the
government has to accept the names. However, the time limit for reply is not fixed.

3|Page
For this reason the appointment of judges consumes a considerable amount of time. It should
be noted that almost 395 posts of judges that are vacant in the High Courts and 7 posts in the
Supreme Court. For the last two years around 146 names are pending for approval by the
Central Government. Of the 146 names, 36 names are pending with the Supreme Court
Collegium while the rest are pending with the Central Government.

THE CONSTITUTIONAL PROVISIONS REGARDING THE APPOINTMENT

The appointment of judges of the Supreme Court and High Court are done by the President
and the Constitution speaks of a consultation process. Art 124 and Art 217 states the
procedure for appointment of judges to the Supreme Court and High Courts resp. The
President in consultation with the Chief Justice of India and other judges to the Supreme
Court and High Courts appoint the judges.

However the meaning of the “in consultation” is quite vague. In the case of Kesavananda
Bharati1, the basic structure doctrine was established. This verdict was disliked by the Central
government led by Indira Gandhi as it curtailed their powers. On 26 th April 1973, Justice Ajit
Nath Ray was promoted to the position of CJI. However, he was not the senior-most-judge.
He was one of the 6judges who dissented the basic structure verdict. He was preferred over 3
senior judges who agreed to the basic structure verdict.

This showed a major attack on the judicial independence by the executive. It was upon the
Supreme Court to look into the crisis of their independence and securing it for a long period
of time. Therefore amendments were made and the final say on this matter was vested upon
the Collegium.

HISTORY AND DEVELOPMENT OF THE COLLEGIUM SYSTEM IN INDIA

The debate on appointment of judges started with the issue of J. Zafar Imam in 1968 when he
was not appointed as the CJI being the senior most judge because of his physical and mental
infirmity. Also as discussed above in 1973, the debate about the appointment of Justice A.N.
Ray who was 4th in the line of seniority was appointed the CJI. The other 3 judges resigned
from the Court as a sign of protest.

In the 14th Law Commission invoked by the government criticised the practice of
appointment of the senior most judges to the post of the CJI establishing the fact that the CJI
may not be an able, experienced judge and also a competent administrator. Therefore the
debate suggested that succession should not be dependent on merely the seniority of judges.
1
Kesavananda Bharati v. Union of India, AIR 1973 SC 1461

4|Page
Following this in the year of 1976, Justice Beg was appointed the CJI by-passing Justice
Khanna who was senior as he in this autobiography had written that he will never be
appointed as the CJI. After the retirement of Justice Beg, Justice Chandrachud the next senior
most judge was appointed thus continuing the rule of seniority. As a result of which the
seniority rule prevailed in the appointment of Chief Justice of India.

In the case of Union of India v Sankalchand Seth 2 which questioned the process of transfer of
judges from one High Court to another under Art 222, the Supreme Court opined that the
President has the right to differ from the advice provided by the consultants. The Court said:

“The consultation implies consultation of two or more persons to find a

satisfactory solution. Consultation is different from consentity”

The question as to whose opinion will be given importance the President or the Chief Justice
in appointment of judges was addressed in various cases after the case of Sankalchand.
According to the three judges’ cases, a judge is appointed to the Supreme Court by the
President in consultation on the recommendation of the Collegium comprising of the CI, the
four senior-most-judges of the Court and senior judges from the High Courts of a prospective
appointee.

The following are the three judges’ cases:

1. S. P. Gupta v. Union of India - 1981 (also known as the Judges' Transfer case)
2. Supreme Court Advocates-on Record Association v. Union of India - 1993
3. In re Special Reference 1 of 1998

The First Judges’ Case

S.P. Gupta v Union of India3 was a case which played a significant role in determining the
supremacy of the Chief Justice of India in judicial appointment matters. The Court deduced
that judicial appointed to the higher judiciary that is to the High Courts and the Supreme
Court as mentioned in Art 217 are not primarily to the Chief Justice of India to reside upon.

The concept of concurrence and consultation was also brought into a debate as used in Art
124 and 217 from it is was deciphered that even though the President must consult the
Constitutional functionaries, their decision doesn’t have to be in concurrence with them all.

2
Union of India v. Sankalchand Seth,(1977) 4 SCC 193
3
S P Gupta v. Union of India, AIR 1982 SC 149

5|Page
This resulted in more power being given to the executive in decision relating to the
appointment of judges over the judiciary.

Second Judges’ Case

In 1993, the first judges’ bench was overruled by the second judges case which comprised of
9 judges’ bench. In the case of in Subhash Sharma v. Union of India 4, the rightness of the
judgement given in the previous case was doubted and it was opined that it be considered by
a larger bench. The Second Judges Case i.e. Supreme Court Advocates on Records
Association v. Union of India5,it was claimed by the petitioners that the executive had fallen
short in performing their duties to fill the judicial appointments within the given time in the
High Courts and also compromised in the quality of the judges.

The questions were examine by the nine judges’ bench that whether the Chief Justice has the
primacy over the appointment of judges to High Court and Supreme Court as well as their
transfers. Also, if the fixed strength of Judges of the High Courts was valid. The judgement
was a result of a great majority of 7:2 who opined that the decision of the First Judges Bench
be overruled.

Third Judges’ Case

The President K.R. Narayan in 1998 referred to Art 217(1) and 222(1) and questioned
whether it was enough to just consult the CJI or other judges must be consulted to complete
the “consultation” process. It was held that the consultation meant that a plurality of judges
must be consulted including the CJI and that solely the CJI can’t be given this power.

This led to the formation of the Supreme Court collegium which consisted of 4 other senior
most judges. Later it became CJI and 4 senior most judges of the Supreme Court. Even if 2 of
them did not agree with one appointment, the Collegium can’t recommend the name to the
Government. The Collegium must also include the next CJI. A lot of people believed that this
was a step taken by the judiciary to strengthen their independence.

THE CREATION OF NATIONAL JUDICIAL APPOINTMENT COMMISSION

It was recently in 2015 that the parliament enacted a law which replaced the Collegium
system with the National Judicial Appointment Commission (NJAC). It was by the 99 th
Constitutional Amendment that the NJAC was brought into picture passed by the Lok Sabha
4
Subhash Sharma v. Union of India, 1990 SCR Supl. (2) 433
5
Supreme Court Advocates on Records Association v. Union of India, (1993)4 SCC 441, AIR 1994 SC 268

6|Page
on 13th August 2014 and by the Rajya Sabha on the next day. The National
JudicialAppointments Commission Act, 2014 was enacted NJAC in order to keep on the
NJAC workings. One of the eminent persons should be belonging to the SC, ST, OBC,
minorities or women. They must be elected for three year period by a body comprising of the
Chief Justice, Prime Minister and the Leader of the Opposition in the Lok Sabha.

On 16th October 2015, the Supreme Court struck down the NJAC Act by a majority of 4:1 as
a result restoring the 20 year old Collegium system appointing higher judiciary. It was held
by the Supreme Court that the NJAC interfered with the independence of the judiciary by the
executive and this was a temperament of the basic structure of the Constitution. Yet, the
Supreme Court acknowledged that fact that the collegium system was lacking transparency
and credibility which had to be rectified by the judiciary.

CRITICAL ANALYSIS OF THE COLLEGIUM SYSTEM

Autocracy of the System

Justice Karnan claimed that the judiciary worked in an undemocratic way in a letter to Chief
Justice H.L. Dattu. He also said that the judiciary in that way because of their absolute power
and acted “on their own whims and fancies to say the least”. He was disturbed by the style
with which the collegium functioned.

The framers of the Constitution never wanted to vest absolute power on the judiciary when
they envisaged the Constitution. Due to a number of reasons, the Collegium system appoint
judges per the vacancies in the Courts. Despite India being a democratic country, the judges
appoint the judges here. The Central Government should make measures to bring out the
Indian Judicial System from the hold of a few families. Collegium system is an ill practice for
a democratic nation like India.

Unaccountability and opaqueness of the System

Recently a pressing case that is Supreme Court of India v. Subhash Chandra Agarwal 6 which
a Delhi High Court judgement in Central Public Information officer in order to make the
system more transparent. The office of the CJI was declared a public authority under the
Right to Information Act.

6
Supreme Court of India v. Subhash Chandra Agarwal,Civil Appeal No. 1045 OF 2010

7|Page
According to the Supreme Court, the transparency doesn’t undermine the Judicial
Independence. It stated that judicial accountability and independence are conjoint elements.

There exists on established benchmark known to the public which describes how the
Collegium system examines the merits, qualifications, and suitability of the judges promoted
to the Apex

This information will only be given out after considering a number of factors. However, this
doesn’t make the Supreme Court an office in the public eye. This only assures increased
transparency in the collegium system. Yet, the efficiency and overpowering independence of
the judiciary still remains a concern.

Promotes Nepotism and gender inequality

In the recent times nepotism that exists in the Hindi Film Industry has set a wildfire among
the public. The nepotism clearly also exists in the judiciary. In system where the judiciary
itself decides who becomes a part of the judiciary, favouritism becomes an impressionable
element. This may also lead to a situation of judicial aristocracy. This is because the
judiciary tends to give out the most crucial decisions for the country and people in it and also
who will become the judges.

It has therefore noticed that the collegium system prefers upper caste males and is not at all
representative of the population who expect justice from them. Based on various data, a large
percentage of the higher judiciary belong to dominant caste and groups. Also for 37 years of
the Supreme Courts existence, only male judges have been favoured and thus appointed.

It was only in 1989 that the first woman Supreme Court judge, Fathima Beevi was appointed
in the higher judiciary. Abhinav Chandrachud informed that out of 127 Supreme Court judges
between mid-1985 and 2010, only 4 were women. Also during this period it was found that
out of the said number of judges, only three-four were from non-Hindu backgrounds.

COMPARATIVE ANALYSIS OF THE SYSTEM OF JUDICIAL APPOINTMENT IN OTHER

COUNTRIES

System in the United States of America

At first sight it might seem that the appointment of judges in the US is a very political
process. Federal judges in this country are nominated and no elected. By the President’s
nomination and majority voted by the US Senate, the judges are nominated. If it is confirmed,

8|Page
then the President decides to commission the judges for that position for a lifetime. (Article II
of the US Constitution).

Group of States Against Corruption (GRECO) discovered in their annual evaluation report of
2017 there is no doubt that the appointed federal judges are candidates of highest legal
ability, integrity and completely qualified for judicial office in all aspects.

Therefore even though the appointment is titled towards political decisions, the existence of
checks and balances ensures efficiency and transparency. Nominates can be easily blocked by
the Senate. There also exists a well laid out selection process to ensure judges appointed are
of highest qualifications.

India must create a similar system of well laid out selection process for the judicial
appointment and checks and balances to ensure quality and indiscriminate appointments

System in Canada

There exists a Judicial Appointment Committee (JAC) in Canada which believes that the
Supreme Court appointment process must be open, clear and easily understandable by the
Canadian public. It is therefore preferred by the Government that the various steps involved
in the selection process, the information, criteria which assesses the candidates must be made
publicly available. The questionnaire filled by the candidates can also be published by the
Committee which the need for it arises to ensure utmost transparency in the System.

It is also acknowledged by the committee that the Minister of Justice decides to appear twice
before the committee in public session-initially to explain the new process and subsequently
explain the process in which the judges were selected.

Providing all this information publicly ensures that the process of appointment is easily
understandable by the Canadians and also ensure that no improper criteria is being used in the
judicial appointment.

CONCLUSION AND RECOMMENDATION

Conclusion

Even after the NJAC and its Constitutional amendment being struck down by the
Constitutional Bench, it was noticed with grave concerns how the prevalent system was
lacking in efficiency and was full of short comings and therefore the bench views and

9|Page
opiniates the needs for removal of malaise and add transparency in the working of the
collegium system.

The prayer to revisit the second and third judges’ case by a larger bench was rejected in the
fourth judges case. It is given in the Constitution that there must exist a consultative and
participatory process between the Constitutional functionaries while appointing the judges to
the Apex Courts.

It has been established that the judiciary enjoy power more than ever before making it the
most powerful judiciary in the world. Its functions do not end at judicial review as said in the
Constitution. It also has the power to interfere in every aspect of political and social life
through the concept of judicial activism

It is unique to India that the judges get to decide and have the right to appoint themselves
with respect to the power of judicial independence and basic structure of the Constitution. If
looked into the history, the framers of the Constitution had decided to not given complete
powers to the judges. It was from 1993 that the Collegium started enjoy the power of
appointing judges to the Supreme Court and the High Court. Until then, the Union Executive
was assigned to do the work. The National Judicial Appointment Commission Act was
overruled by the Supreme Court for reasons discussed above. However, by this Act of the
Court it somehow overruled the basic fundamentals of the Constitution and democracy of
India.

Recommendation

1. A judge who wants to be selected or promoted to a higher post can submit a formal
application with an official Curriculum Vitae and a Bio data.
2. In order to maintain transparency, the meetings of the collegium could be video recorded
along with a good quality audio. Meticulous follow of due-process and honest practices
must be shown in the decision of the collegium.
3. In order to eliminate or reduced the scope of favouritism, nepotism, political
appointments, an independent and verifiable process must be developed for al elevations
and transfers of judges.
4. If any member of the collegium shows signs of deceiving or overpowering the due-
process, he must be removed from the collegium at that instance.
5. The bio data of the applicant judges and the audio-video recordings of the meeting must be
available for the public to view at large from the Collegium Secretariat to uphold Right to

10 | P a g e
 Information. Such documents should be regularly updated on the official website of the
respective High Courts and Supreme Courts.
6. The collegium must develop laws, rules and formats which can enable quicker complain
intake and also develop an eligibility criteria so as to avoid unsolicited complaints against
judges and also to look into the complaints if some concrete substance is discovered.

11 | P a g e