The Collegium System is one of the very important topics for understanding the appointment of Supreme Court judges and the judicial system. A Law student must have deep knowledge about the judicial system and bureaucracy.

What is a Collegium System in India

It is a system of appointment and transfer of judges that has evolved through Supreme Court (SC) judgments and not by Act of Parliament or constitutional provision. The collegial system of appointing and transferring judges of the higher judiciary has long been debated and sometimes blamed for tussles between the judiciary and the executive and the slow pace of judicial appointments.

also read:- Writ Jurisdiction of Supreme Court and High Court

Evolution of Collegium System

1. Appointment of CJI 1950-1973

Till 1973, there was a consensus between the present government and the Chief Justice of India.
A convention was formed where the Chief Justice of the Supreme Court was to be appointed as the Chief Justice of India.
In 1973, A.N.Ray was appointed as the Chief Justice of India. This broke the convention established earlier since Justice A.N.Ray replaced three other Supreme Court judges senior to him.
Again in 1977, another Chief Justice was appointed to replace his superiors.
This led to clash between judiciary the and the executive.

2. First judges case, 1982

In 1982, a petition was filed in the Supreme Court of India.
This case is well-known as the S.P.Gupta case or the First Judges case.
During the proceedings of this case, the Supreme Court discussed 2 essential points.
When asked by the Supreme Court of India whether the word “consultation” in constitutional Article 124 means “concurrence”; The Supreme.
Court struck it down and denied that the Consultation did not mean concurrence. The President was not required to make a decision based on consultation with the Supreme Court.
Another important point of discussion in this case was the part where the Supreme Court held that a High Court Judge can be transferred to any other State High Court even against his will.

3. Second judges case,1993

In 1993, another petition was filed by the “Supreme Court Advocates on Record Association” (SCARA).
In this case, the Supreme Court over-ruled its earlier verdict and changed the meaning of consultation to consent. It thus bind the President of India to consult the Chief Justice of India.
This result to the birth of Collegium system.

4. Third Judges Case, 1998

In 1998, a presidential reference was issued to the Supreme Court questioning the meaning of the word consultation in Articles 124, 217 and 222 of the Constitution.
The Chief Justice will not be the only one in the consultation process.
The consultation would involve a collegium of 4 senior-most judges of the Supreme Court. Even if 2 of the judges were against the opinion, the CJI will not recommend it to the government.
In the verdict, the Supreme Court laid down strict rules for the appointment of judges of the Supreme Court and High Courts, which is currently known as the Collegium System.

5. Collegium System

In this judicial appointment system, the collegium recommends the names of candidates to the central government.
The Central Government will also send the names of the proposed candidates for consultation.
The appointment process takes a long time as there is no fixed time limit for it. If the Collegium sends the same name again, then the government has to give approval to the names.
The Collegium System has faced much criticism not only from the government but also from civil society for its lack of transparency and accountability.
This led to the 99th Constitutional Amendment Act, 2014 National Judicial Commission (NJAC) Act, which replaced the collegial system for appointment of judges.

6. National Judicial Appointment Commission Act, 2014

The 1993 judgment was the basis on which a five-member Constitutional Commission declared the National Judicial Appointments Commission (NJAC) Act and the Constitution (Ninety-nine Amendments) Act 2014 unconstitutional in October 2015.
The NJAC would also recommend names for appointment of Supreme Court Judge and appointment and transfer of High Court Judge
Composition of the NJAC:-

Chief Justice of India
2 senior judges of the Supreme Court
Law Minister of India
2 prominent members selected by the selection committee

What were Attempts to reform the Appointment System?

An attempt to replace it with the “National Judicial Appointment Commission” (through the 99th Amendment Act of 2014) was canceled by the court in 2015 on the grounds that it posed a threat to the independence of the judiciary.

Who Heads the Collegium System?

The SC collegium is headed by the CJI (Chief Justice of India) and consists of four other senior judges of the court.
The HC collegium is headed by its chairman and four other chief justices of this court.
The names recommended for appointment by the HC collegium come to the government only after the approval of the CJI and the SC collegium.
Judges of the higher judiciary are appointed only by the collegial system and the government has a role only after the names are decided by the collegium.

What is Critical about the Collegium System?

Opacity and lack of transparency.
Room for nepotism.
Getting involved in public disputes.
Oversees several talented junior judges and attorneys.

PROCEDURE FOR APPOINTMENT OF JUDGES TO THE SUPREME COURT

For other judges of the Supreme Court, the proposal is initiated by the CJI.
The CJI consults with the rest of the members of the Collegium and also with the Chief Justice of the High Court to which the recommended person belongs.
Consultants must record their opinions in writing and should be part of the file.
The collegium will send a recommendation to the law minister, who will forward it to the prime minister to advise the president.

PROCEDURE FOR APPOINTMENT OF JUDGES TO HIGH COURTS

The President of the Supreme Court is appointed in accordance with the policy of having Presidents from outside the respective states.
The Collegium takes a call on the elevation.
A High Court judge recommends a collegium consisting of the CJI and two senior most judges.
However, the proposal is initiated by the outgoing Chief Justice of the relevant High Court after consultation with two senior colleagues.
The recommendation is sent to the CM who advises the Governor to send the proposal to the Union Law Minister.

Collegium System | Appointment Of Judges | NJAC

What is a Collegium System in India