The Court and the Problem With Its Collegium

Why in News?

• The Chief Justice of India, U.U. Lalit, even if having a short tenure set in motion the procedure contemplated for the collegium of the Supreme Court to appoint new judges to the Supreme Court.

 

Recent issue in SC collegium

• The story: An in-person meeting of the full collegium to finalise the appointment could not be convened on decided date (30 September 2022) because one of the four collegium members namely Justice D.Y. Chandrachud had engagements at the court.
  • Chief Justice of India UU Lalit hence wrote letters to his four co-members (of the collegium) seeking their opinion in writing about the appointment of ten judges to the Supreme Court through circulation of letters.
• Rift: While two Justices namely Sanjay Kishan Kaul and KM Joseph wrote back to the CJI approving the proposals, other two members i.e. Justices Chandrachud and S Abdul Nazeer objected to the procedure of appointing and selecting judges through circulation of letters and withhold approval.
  • They, however, did not express an opinion against the names of the candidates circulated by the CJI.
• Next CJI notice : In the meantime a letter from the Law Minister came about asking the CJI’s view on the appointment of his successor.
  • However, convention suggests that the collegium should not meet and transact its work when less than a month remains for the CJI to retire.
  • Hence, the incumbent CJI UU Lalit cannot clear any more appointments.
• Defying past norm: The norm for the 25 years ever since the collegium was brought in was that physical meetings were held and that become customary law (a custom is followed for so long that it becomes law by precedence).
  • But when the current CJI sought an opinion in writing by circulation, he acted differently from custom.

 

About collegium system

• Description: It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.
• Position: It has no place in the Indian Constitution. The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.
• Evolution: The collegium system was born out of years of friction between the judiciary and the executive that was accentuated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of high court judges and two supersessions to the office of the CJI in the 1970s.

 

Working of collegium system

• The appointment of the CJI and judges of the apex court is governed by a Memorandum of Procedure. The CJI and the judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Constitution.
• SC Judge appointment: When a vacancy is expected to arise in the apex court, the collegium recommends a candidate to the Union Law Minister. 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 opinions of each member of the Collegium and other judges consulted should be made in writing and form part of the file on the candidate sent to the government.
  • If the CJI had consulted non-judges, he should make a memorandum containing the substance of consultation, which would also be part of the file.
  • After the receipt of the Collegium recommendation, the Law Minister would forward it to the Prime Minister, who would advise the President in the matter of appointment.
• Executive role: Judges of the higher judiciary are thus appointed only through the collegium system, and the government has a role only after names have been decided by the collegium.
  • The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
  • The government can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound to appoint them.

 

Arguments against the collegium system

• Insufficient background checks: The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees.
• Non-formal and opaque: A closed-door affair with no prescribed norms regarding eligibility criteria, or even the selection procedure.
• No official recordings: It also does not involve any official mechanism and there are no official minutes of collegium proceedings.
• Overlooks talent pool: The limitation of the collegium field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.
• Out of public gaze: There is no public knowledge of how and when a collegium meets, and how it takes its decisions.

 

Possible solutions

• Recording minutes: The deliberations of the collegium could be video-recorded and archived.
• Specified criteria: Having broadly set specific parameters e.g. regional representation, seniority, gender etc. to elevate judges and advocates to the Supreme Court instead of leaving it solely to the unanimity of the collegium could avoid disagreements in the future.
• UK Model: A special selection commission undertakes the exercise of selecting the various applicants for the post of judges, the qualifications and the procedure being prescribed.
  • The selected nominees are provided in a report to the Lord Chancellor, who recommends a name to the Prime Minister, who in turn advises the King to make the appointment.
• US Model: Under the US Constitution, the President has the power to make a nomination to the Supreme Court and the Senate has the task to approve a candidate to enforce the concept of checks and balances.

 

Earlier recommendations

• National Judicial Appointments Commission (NJAC): The Constitution (98th Amendment) Bill provided for the constitution of NJAC to be chaired by the CJI and with two of the senior-most judges of the Supreme Court as its members.
  • The Union Law Minister would be a member along with two eminent citizens to be nominated by the President in consultation with the Prime Minister.
  • The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary. However, it was struck down by a Constitution Bench of Supreme Court.
• The Law Commission in its 214^th Report on Proposal for Reconsideration of Judges cases I, II and III recommended two solutions:
  • To seek a reconsideration of the three judgments before the Supreme Court
  • A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.

 

Conclusion

• Changing past norms: Some of the most momentous decisions including the celebrated Kesavananda Bharati were taken and judgment delivered on the last sitting day of the retiring Chief Justice- Justice S.M.Sikri.
  • Hence the convention that collegium cannot transact business when less than one month is left for CJI to retire is unconvincing.
• Prioritizing tasks: Decision to appoint judges cannot be higher and more sanctified than deciding cases which is the Courts' primary function and obligation.
  • But, avoiding collegium meet and not deciding on appointment as judges as per laid convention is totally misconceived and deprived of substance.