Mains Daily Question
Jan. 17, 2024
Q.1 Trace the evolution of the collegium system in India. Suggest some potential reforms to make the process of appointment in judiciary more transparent, accountable and inclusive. (10M, 150W)
Approach: Introduction: Briefly define the meaning of the collegium system and its current status. Body: Mention the evolution of the collegium system through relevant case laws and then suggest some potential reforms. Conclusion: Conclude by mentioning the need for maintaining a balance between judicial independence and transparency. |
Answer:
The Collegium system is a system for the appointment and transfer of judges in the Supreme Court and High Court. It is not rooted in the Constitution. Instead, it has evolved through judgments of the Supreme Court. Under the system, the Chief Justice of India (CJI), along with four senior-most Supreme Court judges, recommends the appointment and transfer of judges. A High Court Collegium, meanwhile, is led by the incumbent Chief Justice and the two senior most judges of that court.
Evolution of Collegium System
- S P Gupta Vs Union of India, 1981 (First Judge Case): Supreme Court held that consultation in the process of appointing judges does not require concurrence, and instead only involves the exchange of views.
- Supreme Court Advocates-on-Record Association Vs Union of India, 1993 (Second Judge Case): The Supreme Court reversed its previous and altered the definition of consultation to mean concurrence. It was decided that the advice tendered by the CJI in regard to the appointment of judges to the Supreme Court is binding on the President. Further, the CJI is required to consult with two of his most senior colleagues before tendering such advice.
- Third Judge Case,1998: Supreme court stated that the consultation process to be adopted by the CJI requires ‘consultation of plurality judges’. The CJI should consult a collegium of four senior most judges of the Supreme Court. Even if two judges give an adverse opinion, they should not send the recommendation to the government.
- National Judicial Appointments Commission (NJAC) Act, 2014: It was brought to replace the existing collegium system for appointing judges. However, a five-judge Constitution Bench declared it as unconstitutional and nullified it, stating that it posed a threat to the independence of the judiciary.
Present status is that, the collegium system continues, with concerns around opacity, lack of diversity,potential for nepotism and lack of inclusivity etc.
Potential reforms in Collegium System to make it more transparent, accountable and inclusive
- Reforming the Memorandum of Procedure(MoP): The existing MoP should be reformed. This can include involving representatives from both executive and judiciary in decision-making for judges' appointments to ensure checks and balances.
- Expanding eligibility criteria: It should include, apart from the criteria envisaged in Constitution, other criteria for the determination of merit and suitability of candidates. There can be an open invitation for all eligible candidates to apply for the vacancy in the judiciary in the prescribed format.
- Increasing diversity: Women should be provided adequate representation in judicial appointments.
- Increasing transparency: A list of candidates, who had applied, nominated, or considered by the members of the collegium on their own, should be maintained. All opinions of the collegium can be exchanged in writing. Proceedings of the collegium should be documented and recorded in the minutes.
While the Collegium System is praised for preserving judicial independence, its lack of transparency, potential for nepotism, and criticisms of non-accountability have prompted ongoing debates. Recent discussions have called for reforms rather than abolition, emphasizing timely appointments, improved background checks, and collaboration between the judiciary and the executive.