PROFESSIONAL ETHICS AND PROFESSIONAL

ACCOUNTING FOR LAWYERS

LAW 1106
WINTER SEMESTER 2022-23

ASSIGNMENT 1
COLLEGIUM SYSTEM

SUBMITTED TO
PROF. ABUL HASSAN

SUBMITTED BY
AKSHAYA GV
19BLB1065
 COLLEGIUM SYSTEM

INTRODUCTION
The collegium system in India refers to the mechanism of appointment and
transfer of judges to higher judiciary, which is comprised of the Supreme Court
of India and the High Courts of various states. The collegium system was first
introduced in India in 1993, following a landmark judgement of the Supreme
Court in the case of Supreme Court Advocates-on-Record Association v. Union
of India. Under the collegium system, appointments and transfers of judges to
the higher judiciary are made by a collegium, which consists of the Chief
Justice of India and a group of four senior-most judges of the Supreme Court. In
the case of appointments to High Courts, the Chief Justice of the concerned
High Court is also consulted. The collegium system was introduced in India
with the aim of ensuring independence of the judiciary from the executive
branch of the government. Prior to the introduction of the collegium system, the
executive branch had a greater say in the appointment and transfer of judges.
However, the collegium system has been subject to criticism on several
grounds. One of the main criticisms is that it lacks transparency and
accountability, as the proceedings of the collegium are not open to the public.
Another criticism is that it leads to nepotism and favoritism, as the judges are
appointed based on their seniority and personal relationships, rather than merit.

HISTORY AND ORIGIN

The term "collegium" is not stated in the Constitution at all, but it is presently in
effect as of a judicial declaration. The Bar Council of India's proposals
presented on October 17, 1981, during a national seminar of lawyers in
Ahmedabad can be used to pinpoint the inception of the idea for the system's
development. The following authorities proposed that a collegium system be
used for the nomination of Supreme Court judges:
 The Indian Chief Justice
 Five senior Supreme Court judges
 There will be two representatives each for the Supreme Court Bar
Association and the Bar Council of India.
The President should be required to abide by the Collegium system's
recommendations, though he may ask for reconsideration on certain grounds.
Later, on December 30, 1981, in the case of S.P. Gupta v. Union of India,
Bhagwati Judge of the Supreme Court concentrated on the importance of
establishing a collegium system in India. In defining the term "consultation,"
Bhagwati J agreed with Krishna Iyer J's assertions made in Union of India v.
Sankalchang Himmatlal Sheth, saying, "We agree with what Krishna Iyer, J.
said in Sankalchan Sheth Case that, consultation is different from
consentaneity." They may confer yet still be at odds; they may agree to disagree.
This reminds me of the opinions expressed by Canadian Chief Justice Dixon,
who stated, "[The Prime Minister and the Minister of Justice, who make the
final decision on appointment] feel free to consult me. I feel free to give views,
which they are free to take or not to take." However, Bhagwati J in the First
Judges' Case expressed his displeasure with the current "mode of appointment
of judges in India" where the President has sole authority to choose judges and
whose choice "may be incorrect or inadequate" and "may also sometimes be
imperceptibly influenced by extraneous or irrelevant considerations."
Therefore, he believed it was irresponsible to give a single person (the
President) the authority to make sensitive and important appointments, such as
those to the judiciary, without putting checks and controls in place to prevent
abuse of that power. In light of this, he recommended that a Collegium be
established to advise the President on the selection of a Supreme Court or High
Court Judge. There should be more consultation with broader interests and a
more diverse recommendation authority. It would go a long way towards
securing the right kind of Judges who would be truly independent if the
Collegium were made up of people who are expected to have knowledge of the
people who may be suitable for appointment on the Bench and of qualities
required for appointment—this last requirement is absolutely essential.

ESTABLISHMENT OF THE SYSTEM

Only by amending the terms of Articles 124(2) and 217(1) of the Constitution
may India establish the Collegium of Judges as advocated by Bhagwati J.
However, the task of creating the collegium of judges was successfully
completed in 1993 by a majority of the Supreme Court's nine-judge
Constitutional Bench in the Second Judges' Case and in 1998 by the unanimous
judgement of the same bench in the Third Judges' Case. Bhagwati J. suggested
in the First Judges' Case that collegium composition "should be more broad-
based and there should be consultation with wider interests"; yet, the
collegium's membership remained narrow-based.
S.P. GUPTA V. UNION OF INDIA, 1981
The Supreme Court of India rejected the government's request for protection
from disclosure in the case handled by Justice Bhagwati and ordered the Union
of India to make the correspondence's papers public. Accountability and public
access to information about how the government operates are necessary for a
transparent and effective participatory democracy. In an open government,
being in the public eye will guarantee a clean and healthy administration and is
a potent deterrent to oppression, corruption, and the improper use or abuse of
power. The right to know, which is implied in the freedom of speech and
communication protected by Article 19(1)(a) of the Indian Constitution, is the
immediate antecedent of the idea of an open government. Therefore,
transparency in government operations must be the norm and secrecy must be
the exception, with justification given only in cases where the strictest standards
of the public interest call for it.
Regarding the argument based on Article 74(2), the Court determined that while
the advice from the Council of Ministers to the President would be shielded
from judicial review in this case, the correspondence between the Law Minister,
the Chief Justice of Delhi, and the Chief Justice of India was not shielded
simply because it was mentioned in the advice. The Central Government's
decision regarding an appointment or transfer can only be contested on the
grounds that (1) there was insufficient and ineffective consultation with the
relevant authorities, and (2) the decision was made on irrelevant grounds. The
correspondence in question would be pertinent qua both of these justifications,
so its disclosure is required. The basis for the request for protection under the
Evidence Act is public interest. The Court must determine whether disclosure of
a specific document will be against the public interest in light of these factors.
In order to determine whether the document should be safeguarded, it must
weigh the public interest in the transparent administration of justice through
disclosure against the public interest sought to be protected by nondisclosure. It
was determined that the correspondence in this case was not protected. Because
it dealt with a topic of substantial public interest—the nomination and transfer
of judges—disclosure would not have been damaging. Political criticism or the
fear of an uninformed or capricious public were insufficient grounds for the
preservation of the correspondence. The Court determined that the Central
Government's order regarding the non-appointment was appropriate after
reviewing the correspondence.
ADVOCATES ON RECORD ASSOCIATION V. UNION OF INDIA, 1993
The majority in this decision, also referred to as the second judges' transfer case,
overruled the SP Gupta case and declared that the Chief Justice of India should
be given priority when it comes to the appointment of Supreme Court and high
court judges. The court held that the chief justice of India should be chosen
based on seniority and set forth certain procedures controlling the appointment
and transfer of judges. The Chief Justice of India's view must be followed
before any judge can be appointed to the Supreme Court or any High Court,
according to the Supreme Court's explicit ruling. The Supreme Court ruled in
favour of the petitioners by a margin of 4:1 and declared that Article 124A is the
most significant provision of the 99th Amendment. The entire amendment
would be reversed if Article 124A were to be removed. The National Judicial
Appointments Commission's judicial component is not adequately represented
under clauses a and b of Article 124A, which is insufficient to maintain the
judiciary's primacy and, as a result, violates the independence of the judiciary,
which is the foundation of the Constitution.
Similar to Article 124A (c), Article 124A (c) and (d) contradict the Constitution
since they place a union minister in command of the law, which goes against the
fundamental principle of the Constitution's separation of powers. The National
Judicial Appointment Commission Act of 2014 and the 99th Constitution
Amendment Act of 2014 were declared invalid by the Supreme Court. The
method for appointing judges to the Supreme Court, High Court, Chief Justice
of India, and for transferring judges should be implemented in accordance with
the situation that existed before to the 99th Amendment. Justice Chalemeswar
supported the constitutionality of the change in a decision that was made
separately by each of the five judges.

IN RE SPECIAL REFERENCE CASE, 1999

In 1998, President K R Narayanan gave the Supreme Court a Presidential
Mention in relation to the definition of "consultation" under Article 143 of the
Constitution (advisory jurisdiction). The challenge was whether CJI's singular
viewpoint could generate a consultation. The opinion of the CJI was formed
after consultation with numerous judges. The Coram for Appointments and
Transfers is governed by the following norms, which were created by the
Supreme Court: The CJI and his four senior-most colleagues, not just two, must
make the recommendation. It might be wise to consult the Supreme Court
judges who previously sat on the High Court from whence the proposed name
was derived. The CJI shouldn't give the government the recommendation, even
if it was shared by two judges. In Third Judges Case, the Nine-Judge Bench
opined the following points with reference to the appointment of judge:
1. The collegium, which consists of the CJI and the four senior most
Supreme Court Judges, must be consulted in order for the CJI's opinion,
which has precedence in the consultative process and represents the
opinion of the judiciary, to be formulated. If the Judge is not one of the
four senior most Judges, the Judge who will succeed the CJI should also
be included. Their views should be obtained in writing
2. It is necessary to get the written opinions of the Supreme Court's most
senior judges who are natives of the High Courts where the candidates for
recommendation are serving as judges, if not members of the collegium.
3. The collegium's suggestion, along with the opinions of its members and
the seniormost Supreme Court judges who are from the High Courts
where the candidates for recommendation are serving as judges, should
be communicated to the Indian government by the Chief Justice of India.
4. The Chief Justice of India should include in the memorandum and
communicate to the Indian government the content of the opinions of the
other people he consulted, notably those of non-judges.
5. Normally, the collegium system should base its recommendations on
consensus; however, if the CJI dissented, no one would be chosen in the
event of a difference of opinion.
6. If two or more collegium members disagree with the recommendation,
CJI should not uphold it.
7. The papers and information provided by the Indian government must be
presented to the original collegium or the rebuilt one in the event that the
recommended individual is not appointed so that the collegium can
decide whether to withdraw or restate the recommendation. The
appointment can only be made if it is unanimously reaffirmed.
8. The CJI may, at his discretion, inform the person for whom the
recommendation was made of the reasons given by the Indian
government for that person's non-appointment and request that person's
response, which, if provided, would be taken into consideration by the
collegium prior to the collegium withdrawing or retiring the
recommendation.
9. While inter-seniority among judges in respective High Courts and their
aggregate seniority on an all-India basis should be given weight, merit
should be the primary factor.
 10.Regardless of his lower seniority, a person of exceptional merit should be
recommended for a job for which there are excellent and convincing
grounds to do so.
11.The fact that the High Courts are not represented on the Supreme Court
may be taken into account when proposing one of several candidates with
more or less equal degrees of merit.
12.Unless it is noted that a judge should never be appointed for important
reasons, judges who were passed over may be given another chance.
13.The recommendations made by the CJI without following the rules and
specifications are not legally obligatory on the Indian government.

SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION V. UNION

OF INDIA, 2015
The National Judicial Appointments Commission (NJAC) Act, which sought to
replace the Collegium system with a new body comprising of judges and
executive representatives for the selection of judges, was overturned by the
Supreme Court in this case. The NJAC Act would damage the independence of
the judiciary, according to the court, which confirmed the Collegium system as
the principal means for appointing judges to the higher judiciary.

CAMPAIGN FOR JUDICIAL ACCOUNTABILITY AND REFORMS V.

UNION OF INDIA, 2016
The Supreme Court emphasised the need of openness in the Collegium system
and ordered the government to write a MOP in this matter for appointments to
the upper judiciary in collaboration with the Chief Justice of India. The court
further ordered the government to complete the MOP as soon as possible and to
give the judiciary's opinions fair regard.

NJAC ACT AND ABOLITION

In 2014, Parliament passed the National Judicial Appointments Commission Act
(NJAC). In an effort to promote transparency in the selection process for higher
judicial appointments, the aforementioned law was introduced. In accordance
with the Act, the CJI, the Leader of the Opposition, and the Prime Minister
would form a collegium with two of the SC's most senior judges, the Minister
for Law and Justice, and two other people to form a commission for the
appointment, selection, and transfer of judges in the higher judiciary. As a
result, the Commission is made up of representatives from the court system, the
executive branch, and notable or important members of society.
The Constitution (99th Amendment) Act introduced Articles 124A, 124B, and
124C while amending Articles 124 and 217. The NJAC Act, however, was
challenged before the Supreme Court and was overturned in 2015. The Court
determined that the basic structure includes the judiciary's top-down
appointment of judges. Judges are appointed as part of the independence of the
judiciary, which the NJAC was found to have violated.

PROS OF HAVING A COLLGIUM SYSTEM

 Secrecy is heightened by the collegium system. This mechanism,
according to Ruma Pal, a former Supreme Court of India judge, is one of
the best kept secrets in the nation. It was maintained a secret within the
four walls of the organisation to ensure the correct and efficient operation
of the institution, which thickens the system.
 The collegium system separates politics from the judiciary. It isolates the
judiciary from legislative and executive influence. The government's
influence allows the courts to function favourably and without fear. This
assures that the theory of separation of powers is governed.
 There are numerous instances where political pressure resulted in the
transfer of Supreme Court judges. Therefore, granting the executive
branch the authority to remove judges would result in a reduction in the
judiciary's independence and a halt to its productive operation. The
collegium system would be ideal for a fair operating court since it
guarantees the judges' independence and permits them to carry out their
duties without interference or fear.
 In comparison to the CJI, the executive branch is not knowledgeable
about or not a specialist in the requirements of the judge. The collegium
mechanism makes sure that the right person occupies the seat of Supreme
Court Judge.

CRITICISMS OF THE COLLEGIUM SYSTEM

 Lack of transparency: The collegium system is frequently criticised for
the appointment process's lack of openness. Critics contend that the
system is secretive and unaccountable, raising questions about the
impartiality and fairness of the hiring process.
  Limited representation: The collegium system is viewed as a select group
of judges who have the power to appoint and remove other judges. This
has raised concerns about a lack of diversity and representation in the
judiciary, as well as the underrepresentation of some communities and
geographic areas.
 Absence of checks and balances: The judiciary controls all aspects of the
collegium system, including appointment, with no outside checks and
balances. Fears have arisen as a result of this, including the possibility of
favouritism and nepotism in the system and the lack of any mechanisms
to hold the judiciary accountable for its actions.
 Inefficiency: The collegium system has also come under fire for being
ineffective at handling transfers and appointments, which causes
vacancies in the judiciary and delays in the administration of justice.
 Lack of consultation: The executive branch of government, which is in
charge of representing the people and enforcing accountability, is not
consulted at all under the collegium system. Critics claim that this
violates the separation of powers concept and might result in an interest
conflict between the government and the judiciary.

RULE OF LAW CONVENTION, 2018

The "Rule of Law Convention, 2018" organized by the Supreme Court of India
in August 2018, which was aimed at promoting the rule of law and discussing
issues related to the functioning of the collegium system. The convention was
attended by judges from the Supreme Court and High Courts, legal scholars,
advocates, and other stakeholders, and focused on issues such as transparency,
accountability, diversity, and quality of appointments to the higher judiciary.
The convention emphasized the importance of adherence to the principles of the
rule of law in the functioning of the collegium system and called for greater
transparency and accountability in the selection and appointment of judges.
One of the key recommendations of the convention was the need to establish a
secretariat to provide administrative support to the collegium system and
improve its functioning. The convention also emphasized the importance of
increasing diversity in the judiciary and suggested measures to ensure greater
representation of marginalized and underrepresented groups in the appointment
process. the Rule of Law Convention, 2018 on Collegium was an important step
in promoting transparency and accountability in the functioning of the
collegium system and in ensuring that appointments to the higher judiciary are
made in accordance with the principles of the rule of law. In addition to the
recommendations made during the Rule of Law Convention, 2018 on
Collegium, there have been ongoing discussions and debates on the need for
further reforms to the collegium system to address some of its shortcomings.
One area of concern has been the lack of transparency in the selection and
appointment of judges to the higher judiciary. The collegium system has been
criticized for its opaque functioning, with decisions being made behind closed
doors, without any public scrutiny or accountability. To address this, there have
been calls for greater transparency in the selection process, with suggestions
such as making the criteria for selection and appointment public, and
conducting interviews and consultations with candidates in an open and
transparent manner. Another area of concern being the need to ensure greater
diversity in the judiciary. The collegium system has been criticized for its lack
of diversity, with most appointments being made from a narrow pool of
candidates from a few top law schools and with similar social backgrounds. To
address this, there have been calls for measures such as affirmative action and
quotas to increase the representation of marginalized and underrepresented
groups in the judiciary. The collegium system remains a subject of ongoing
debate and discussion in India, with calls for further reforms to ensure that
appointments to the higher judiciary are made in a fair, transparent, and merit-
based manner. The Rule of Law Convention, 2018 on Collegium was an
important step in this direction, but more needs to be done to address the
shortcomings of the collegium system and ensure that it functions in accordance
with the principles of the rule of law.
CONCLUSION
Every process for judicial appointment may be regarded as the optimal
mechanism because each mechanism may have certain benefits and drawbacks.
Despite this, the commission system is perhaps a very successful tool for
judicial appointment in order to preserve public confidence in the appointment
procedure and to guarantee judicial independence. To guarantee the efficacy of
this process, the commission should be made up of representatives from the
executive, legislative, judicial, legal, and lay sectors of society. Additionally, it
should be ensured that the commission use a methodology that is available to
public inspection and is transparent. The South African Judicial Service
Commission's organisational structure and operational methodology may serve
as a suitable benchmark in this regard. A system like this might work wonders
in ensuring that the most qualified individuals are appointed to judicial
positions.
The Collegium of Judges, however, has not been doing a satisfactory job of
nominating individuals for nomination as judges in the upper courts. The
Collegium is not carrying out its duties according to any rules or standards. Its
choices "are secret, mysterious, and enigmatical. Justice. Iyer claimed that the
Collegium had been "delayed, capricious, and smeared by favourites" and that
the current collegiate elitism was the "vanishing point of democratic values in
the justice pyramid."
By creating a National Judicial Commission with a predominance of judicial
members in 2002, the Government of India nevertheless made an unsuccessful
attempt to put an end to the Collegium system of judicial appointment. The
Lower House of the Parliament was presented with the Constitution (98th
Amendment) Bill, which was intended to establish the Commission, but it
finally expired. A draught law to create two judicial commissions in India—one
to handle the appointment of judges to the Supreme Court and another to handle
the appointment of judges to the High Courts—is currently being prepared by
the Union Law Ministry (as of May 2012). On the other hand, the Supreme
Court was considering a writ case that challenges the validity of the creation of
the Collegium of judges.
In order to ensure that the issue of appointment of judges in the superior courts
of India does not result in a politically biassed judge who is or feels beholden to
the appointing authority, it is reasonable to expect that two judicial commissions
would be established in India within a short period of time.