what is meant by collegium system
The collegium system of appointment of judges to the country’s constitutional courts was evolved in order to ensure judicial independence so that no other branch of the state, including the legislature and the executive, would have any say in the appointment of judges. It is a system under which appointments and transfers of judges is decided by a forum comprising the Chief Justice of India and the four seniormost judges of the Supreme Court. There is no mention of the collegium either in the original Constitution of India or in successive amendments.
Article 124 of the Constitution, dealing with the appointment of Supreme Court judges, says the appointment should be made by the President after consultation with such judges of the high courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own. Article 217 that deals with the appointment of high court judges says a judge should be appointed by the President after consultation with the CJI and the governor of the state. The Chief Justice of the high court concerned too should be consulted.
The collegium system is based on three judgments of the Supreme Court that are collectively called the ‘Three Judges Cases’. The SP Gupta vs Union of India case of 1981 is called the ‘First Judges Case’. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years. The collegium system has been in use since the judgment in the ‘Second Judges Case’ was issued in 1993. On October 6, 1993, a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case (also called the ‘Second Judges Case’) said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the SP Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
Here, the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.” For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver.
The third judgment was pronounced in the year 1998 when President K.R. Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution.
Legal experts point to systemic errors in the collegium system of appointment of judges. Some of them point out that there is immense 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. The system is also criticised for being a closed-door affair without a formal and transparent mechanism.
A National Judicial Commission (NJC) is a suggested alternative to the collegium system. The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the constitution of an NJC to be chaired by the CJI and with two of the seniormost judges of the Supreme Court as its members. The Union law minister would be a member along with an eminent citizen 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.