Collegium system of India

Collegium system of India jatinverma.org/collegium-system-of-india September 17, 2019

Collegium system of India: Recently there was a controversy over the transfer of the Chief Justice of the Madras High Court, Justice Vijaya Kamlesh Tahilramani, to the Meghalaya High Court. Justice Tahilramani submitted her resignation after her request for reconsideration of the transfer was rejected by the Collegium headed by the Chief Justice of India (CJI), Ranjan Gogoi, and four senior-most judges of the Supreme Court.

People have questioned the transfer as well as the lack of transparency about the exact reason of the transfer, the Supreme Court (SC) has issued an official statement that the Collegium had cogent reasons and that these could be revealed, if necessary.

What is the Collegium System?

The Collegium of judges is the Supreme Court’s invention. It is a system under which judges are appointed by an institution comprising judges.

What the Constitution says?

The Constitution says that judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.

The procedure of appointment of judges to the SC and HCs is provided under Article 124 and Article 217 respectively.

These Articles state that judges of the Supreme Court shall be appointed by the President in consultation with the Chief Justice of India (CJI) and other judges of the Supreme Court and the High Courts as the President of India may deem necessary.

The judges of the High Courts are appointed by the President in consultation with 1/12

the CJI, the Governor of the concerned state, and the Chief Justice of the High Court.

But what does the term “in consultation” actually imply? Do the CJI has to agree with the President’s recommendation? What if CJI and the President differed? We will get the answer soon.

Why the collegium system came into existence? – The Kesavananda Bharati case The story begins in 1973 when, by a narrow 7-6 margin, the SC delivered its historic verdict in Kesavananda Bharati v. the State of Kerala. This case established the “basic structure doctrine” The Basic structure doctrine The Constitution has a basic structure of principles and values that cannot be altered by any Act of the legislature of the executive.

The basic features of the Constitution have not been explicitly defined by the Judiciary.

Key among these “basic features” are following ●

Fundamental rights

●

The Preamble

●

The supremacy of the constitution.

●

A republican and democratic form of government.

●

The secular character of the Constitution.

●

Maintenance of the separation of powers.

●

The federal character of the Constitution.

● The mandate to build a welfare state contained in the Directive Principles of State Policy. ●

Maintenance of the unity and integrity of India.

●

The sovereignty of the country.

●

The sovereignty of India.

●

The democratic character of the polity.

●

The unity of the country.

●

Essential features of individual freedoms.

●

The mandate to build a welfare state.

●

A sovereign democratic republic.

2/12

●

The provision of social, economic and political justice.

●

Liberty of thought, expression, belief, faith and worship.

●

Equality of status and opportunity.

The doctrine thus forms the basis of a power of the Supreme Court to review and strike down constitutional amendments and acts enacted by the Parliament.

Parliament can amend the Constitution but cannot destroy its “basic structure”.

Article 368 provides for two types of amendments, that is, by a special majority of Parliament and also through the ratification of half of the states by a simple majority. ● The Constitution can be amended by a simple majority of the two houses of Parliament which is outside the scope of Article 368. ● In the majority of cases, the Constitution needs to be amended by a special majority of the Parliament, (that is, more than 50 percent) of the total membership of each House and a majority of two-thirds of the members of each House present and voting. ● Provisions related to the federal structure of the polity can be amended by a special majority of the Parliament and also with the consent of half of the state legislatures by a simple majority.

The Kesavananda verdict was disliked by the central government led by Indira Gandhi, which viewed it as a curtailing of its powers.

How the govt. reacted?

On 26 April 1973, Justice Ajit Nath Ray, was promoted to the position of CJI. But Ray was not the senior-most judge. He was one of the 6 judges who ruled against the basic structure doctrine in the Kesavananda Bharati case. His elevation was done by superseding three more senior judges – three judges who had ruled in favour of the basic structure doctrine that the government disliked. This was a blatant attack on judicial independence by the executive.

SC was now faced with a crisis surrounding both its independence and the securing of its independence in the long-term. The central question was: who has the final say in the appointment of judges, the government or the Supreme Court? The answers were given by the Judges cases.

The Judges Case Following are the three cases which came to be known as the 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 vs Union of India – 1993 3. In re Special Reference 1 of 1998 3/12

1.First Judges Case In the First Judges Case (1981), SC held (4-3) that in the appointment of a judge of the Supreme Court or the High Court, the word “consultation” in Article 124 (2) and in Article 217(1) of the Constitution does not mean “concurrence”.

In the event of a disagreement, the “ultimate power” would rest with the Union Government and not the CJI, the SC ruled. The First Judges Case, therefore, was an instance where the apex court acted against its own interests.

2.The Second Judges Case In 1993, SC was hearing petitions regarding court vacancies. This was the Second Judges Case. During the hearings, the First Judges Case was referred again to a nine-judge Bench. In the Second Judges Case (1993), the court (7-2) overruled the First Judges Case. It held that in the event of conflict between the President and the CJI with regard to appointments of Judges, it was the Chief Justice of India whose opinion would not only have primacy, but would be determinative in the matter.

The SC not only regained its powers from the government but also gave itself the upper hand over the other two branches.

The Second Judges Case (1993) introduced the Collegium system.

While the court has already made it clear that the CJI would have the final say the President’s recommendation was non-binding, The court also expanded that appointments would be decided by the CJI and the two most-senior judges after the CJI in the SC for appointing SC judges; the two most senior judges of the respective HC for appointing judges to that particular HC. 3.The Third Judges Case In 1998, the Supreme Court of India delivered its opinion responding to a question of law regarding the collegium system, raised by the President of India under his constitutional powers under article 143.

The SC reaffirmed its 1993 judgement and expanded the Collegium to a five member body to include the CJI and the four most-senior judges of the court after the CJI. How is the CJI selected by the Collegium?

The President of India appoints the CJI and the other SC judges.

4/12

The new CJI’s name is recommended by the outgoing CJI. In practice, seniority basis is strictly followed while recommending the name.

The Union Law Minister forwards the recommendation to the Prime Minister who, in turn, advises the President.

How the other judges of the SC are selected?

Article 124 (2): Every Judge of the Supreme Court shall be appointed by the President by warrant under his/her hand and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the States as President may deem necessary.

The proposal is initiated by the CJI. The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.

The consultees must record their opinions in writing and it should form part of the file.

The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

Eligibility to become a Supreme Court judge: To become a judge of the Supreme Court, an individual should be an Indian citizen. The norms relating to the eligibility has been envisaged in Article 124 of the Indian Constitution. In terms of age, a person should not exceed 65 years of age.

The person should serve as a judge of one high court or more (continuously), for at least five years or the person should be an advocate in the High court for at least 10 years or a distinguished jurist.

How the Chief Justices of the High Court are selected?

As per article 217, the Chief Justice of the High Court is appointed by the President in consultation with the Chief justice of India as well as the Governor of the state.

The Chief Justice of the High Courts is appointed as per the policy of having Chief Justices from outside the respective States.

High Court judges are recommended by a Collegium comprising the CJI and two seniormost judges.

The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.

The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Eligibility to become a High Court judge: 5/12

A person to be appointed as a judge of a high court should be a citizen of India. Further, He should have held a judicial office in the territory of India for ten years or should have been an advocate of the high court(s) for ten years. There is no minimum age fixed for high Court judges.

Does the Collegium recommend transfers too?

Yes, the Collegium also recommends the transfer of Chief Justices and other judges.

Article 222 of the Constitution provides for the transfer of a judge from one High Court to another. In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.

However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.

When a CJ of a High Court is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.

The issues: Government Vs. Judiciary: The government and the Supreme Court collegium disagree on recommendations for judicial appointments quite frequently these days. It has become routine to hear that some recommendations for High Court appointments, as well as elevation to the Supreme Court, have been disapproved by the government.

Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval. If the Collegium resends the same name again then the government has to give its assent to the names. But time limit is not fixed to reply. This is the reason that appointment of judges takes a long time.

There are 395 posts of the judges are vacant in the High Courts and 4 posts in the Supreme Court. There are 146 names are pending for approval between the Supreme Court and Central Government since last two years. Out of these 146 names, 36 names are pending with the Supreme Court Collegium, while 110 names are yet to be approved by the Central Government.

What Judiciary can do?: If the Collegium reiterates its recommendation, the Centre will have no option but to accept it. But suppose the Centre does not comply with the collegium’s reiteration, there is bound to be a constitutional crisis. In such a scenario, the court issue a mandamus (directive) to the President because he is the appointing authority for judges of the Supreme Court and the high courts.

Under Article 361 of the Constitution, the President and the governors “shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.

6/12

Article 32 of the Constitution gives the Supreme Court the power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of the rights conferred by part III. The High Court may issue the same writs under Article 226 of the Constitution.

A mandamus is a writ that can be issued a court commanding a public authority to perform a public duty belonging to its office.

It is generally issued to various authorities such as to a person; a corporation or an inferior tribunal requiring him or them to do a particular thing which pertains to his or their office in the nature of public duty, subject to certain restrictions.

The proper function of the writ of mandamus is to compel the doing of a specific act and is not an appropriate remedy for the enforcement of duties generally, or to control and regulate a general course of official conduct for a long series of continuous acts to be performed under varying conditions. This is because it would render the court a supervising and managerial body, keeping the case open for an indefinite time to supervise the continuous performance of duties by the respondent etc.

Criticism of the Collegium system: Opaqueness and a lack of transparency: The consultations are behind-the-door dealings of the judicial branch that lacks accountability and public scrutiny. There is secrecy in the process.

Scope for nepotism: There is a very small base from which the selections were made. As such, the lack of transparency has ignited fears of nepotism and elevation of judges based on personal relationships and past favours instead of merit or seniority.

Efforts to reform the Collegium system: The National Judicial Appointments Commission (NJAC): National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the appointment and transfer of judges to the higher judiciary in India.

The NJAC would have replaced the collegium system.

The NJAC was a body that would have been comprised of the CJI, two senior judges, the Law Minister and “two eminent personalities� appointed by the Prime Minister, Leader of Opposition and CJI. The Commission was established by Parliament in 2014 as the 99th Constitutional Amendment Act. The NJAC Bill and the Constitutional Amendment Bill was ratified by 16 of the state legislatures in India and subsequently assented by the President of India.

How NJAC was designed to function?

7/12

The judiciary representatives in the NJAC — the Chief Justice and two senior-most judges – could have vetoed any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges required the support of other members of the commission to get a name through.

How Judiciary responded?

Later on the NJAC was struck down as unconstitutional by the SC by a 4-1 majority (in what is sometimes referred to as the Fourth Judges Case).

The SC branded the Commission as an infringement on judicial independence and a violation of the separation of powers. Therefore, the Collegium System was preserved .

However the court invited suggestions, even from the general public, on how to improve the collegium system, broadly along the lines of – setting up an eligibility criteria for appointments a permanent secretariat to help the collegium sift through material on potential candidates infusing more transparency into the selection process grievance redressal and any other suggestion not in these four categories, like transfer of judges.

This resulted in the court asking the government and the collegium to finalize the memorandum of procedure incorporating the above.

What is Memorandum of Procedure: In India, Memorandum of Procedure defines the process on how Supreme Court and High Court Judges are appointed. Discussions have been going on between Judiciary and the government regarding the finalisation of the revised MoP, which would guide all future appointments.

A separate order, passed by a five-judge bench in December 2015, listed factors — these included eligibility criteria, transparency in the appointment process, secretariat and complaints — for preparing the MoP. The government and the collegium have been unable to agree on a Memorandum of Procedure for appointment of judges. It is due to combination of the secrecy of the process and the apparent hostility between the judiciary and government.

The key flashpoints: importance of seniority, need for judges to write their reasons down, having a committee to vet candidates to tapping the Bar for the bench. Let’s discuss them one by one 1.Seniority & Merit 8/12

The government’s proposal is that while promoting a High Court Chief Justice or a judge to the Supreme Court, the criteria of seniority, merit and integrity would be followed.

Preference should be given to Chief Justices of the High Courts keeping in view their “inter-se seniority”.

However, the judges’ view, said to be communicated to the Government recently, is that “the criteria of seniority as a High Court judge, subject to merit and integrity, would be followed”.

In other words, “seniority” is, yes, a factor but it should be subject to “merit and integrity”.

Recently the people have questioned the decision of the Collegium to elevate two Delhi High Court judges to the Supreme Court by superseding three seniors. While recommending the names the Collegium had said the decision was taken keeping in mind the combined seniority on an all-India basis of Chief Justices and senior puisne judges of High Courts, apart from their merit and integrity.

2.Reasons in writing The government has proposed that “in case a senior Chief Justice being overlooked for elevation to the Supreme Court, the reasons for the same be recorded in writing”. This is necessary for the sake of “transparency” and to ensure there is no “favouritism”, is the government’s argument.

The Collegium’s counter-argument is that “recordings of reasons for overlooking a Chief Justice or a senior puisne Judge will be counter-productive” as the reasons specified may mar his/her prospects of being elevated to the Supreme Court at a “future point of time”.

Moreover, it may also affect his/her duties as judge or Chief Justice and may become a “permanent blot on his/her career”.

3. Three-judge quota The government proposed that up to three judges may be appointed from the Bar or from distinguished jurists with proven track records. And that all judges of the Supreme Court should be open to recommend names for these postings. But the judiciary says that this “upto three” tantamounts to “either restricting the intake from the bar or fixing a quota of the bar”. And in neither case does it fall within the framework of the Constitutional provisions.

After deliberation, the government has agreed with this view that fixing a limit is not necessary so long as their representation is assured.

4.Committee & Secretariat One serious difference between the two sides is over the government’s proposal to set up an institutional mechanism in the form of a committee to assist the Collegium in the evaluation of the suitability of prospective candidates. It wants two retired judges of the 9/12

Supreme Court and an eminent person/jurist to be jointly nominated by the Chief Justice of India and the government. The Collegium feels that’s not necessary.

The government counters that “wider consultation is necessary to select best candidates”.

To underline this, it argues that “consultation” is embedded in the Constitution when it comes to judges’ postings.

The government has also proposed that there be a secretariat that maintains a database of judges, schedules Collegium meetings, maintains records and receives recommendations and complaints related to judges’ postings. The judiciary hasn’t rejected the idea of “a permanent secretariat “ but it believes that forming and functioning of it should be left to the wisdom of the CJI and it should be under the ambit of the Registrar of the apex court.

The government, however, wants it to be under the Law Ministry. It argues that the secretariat would help cast a wider net for better candidates and for the Collegium to decide, it should have comparative data.

5. National Security The government also insists on adding a criteria of “national security” and “larger public interest” for rejection of recommendation by the Collegium.

The Parliamentary Standing Committee on law and justice has noted that the government may assume a “veto power” and reject any name recommended by the Supreme Court collegium for appointment as a judge if it succeeds in inserting clauses of “national security” and “larger public interest” in the proposed Memorandum of Procedure (MoP).

Other issues: While the Right to Information Act made the judiciary a public authority, the judiciary has stymied the right to information. Information on judicial appointments and pending judgments has been refused by the Supreme Court, that has challenged every decision of the Central Information Commission asking it to disclose such information.

What the SC has done so far to restore the Collegium’s credibility?

In an effort to boost transparency, the Collegium’s resolutions are now posted online, but the reasons are not given. Full disclosure of reasons for transfers may make lawyers in the destination court cautious of the transferred judge.

Embroilment in public controversies and having relatives practicing in the same High Court could be common reasons for transfers.

10/12

In respect of appointments, there has been an acknowledgment that the “zone of consideration� must be expanded to avoid criticism that many appointees hail from families of retired judges.

Suggestions: Substantive proposals such as transparently outlining a zone of consideration, setting up a process for nominating and interviewing candidates, outlining criteria for appointment, clarifying the importance of seniority, presenting an annual report of candidates considered, interviewed, appointed and rejected and many others, suggested The govt. and judiciary should make all future correspondence on the Memorandum of Procedure public. This will ensure transparency and accountability.

Over the decades, several high-level Commissions have examined method of appointment of judges to the higher judiciary. They have suggested that an independent body be set up to make recommendations for such appointments.

These are summarised below.

Table 1: Comparison of various recommendations on the composition of a proposed appointments body Recommendatory Body

Suggested composition

2nd Administrative Reforms Commission (2007)

Judiciary : CJI; [For HC judges: Chief Justice of the relevant High Court of that state] Executive : Vice-President (Chairperson), PM, Law Minister, [For HC judges: Includes CM of the state] Legislature: Speaker of Lok Sabha, Leaders of Opposition from both Houses of Parliament. Other: No representative.

National Advisory Council (2005)

Judiciary: CJI; [For HC judges: Chief Justice of the relevant High Court of that state] Executive:Vice-President (Chairman), PM (or nominee), Law Minister, [For HC judges: Includes CM of the state] Legislature:Speaker of Lok Sabha, Leader of Opposition from both Houses of Parliament. Other: No representative.

NCRWC (2002)

Judiciary: CJI (Chairman), two senior-most SC judges Executive: Union Law Minister Legislature: No representative Other: one eminent person

Law Commission (1987)

Judiciary : CJI (Chairman), three senior-most SC judges, immediate predecessor of the CJI, three senior-most CJs of HCs, [For HC judges: Chief Justice of the relevant High Court of that state] Executive: Law Minister, Attorney General of India, [For HC judges: Includes CM of the state] Legislature: No representative Other: One Law academic

Appointment of judges to the highest court in different jurisdictions 11/12

Country

Method of Appointment to the highest court

Who is involved in making the appointments

UK

SC judges are appointed by a five-person selection commission.

It consists of the SC President, his deputy, and one member each appointed by the JACs of England, Scotland and Northern Ireland. (The JACs comprise lay persons, members of the judiciary and the Bar and make appointments of judges of lower courts.)

Canada

Appointments are made by the Governor in Council.

A selection panel comprising five MPs (from the government and the opposition) reviews the list of nominees and submits 3 names to the Prime Minister.

USA

Appointments are made by the President.

Supreme Court Justices are nominated by the President and confirmed by the United States Senate.

Germany

Appointments are made by election.

Half the members of the Federal Constitutional Court are elected by the executive and half by the legislature.

France

Appointments are made by the President.

President receives proposals for appointments from Conseil Superieur de la Magistrature.

Way forward: The need of the hour is to revisit the existing system through a transparent and participatory procedure, preferably by an independent broad-based constitutional body guaranteeing judicial primacy but not judicial exclusivity.

The new system should ensure independence, reflect the diversity, demonstrate professional competence and integrity.

The system needs to establish a body which is independent and objective in the selection process.

Setting up a constitutional body accommodating the federal concept of diversity and independence of the judiciary for the appointment of judges to the higher judiciary can also be thought of as an alternative measure.

Read More: Collegium System | The need for judicial restraint | Why Judges Are So Private

12/12