Authored By: Kanika Arora
Collegium system: understanding, pros, and cons
Table of Contents
Introduction
Different countries have different ways of choosing judges in their courts. For instance, in the United States, the President appoints Federal Court judges whereas an American Bar Association committee examines such nominations before passing them to the Senate for confirmation. In the United Kingdom, the Judicial Appointments Commission (JAC) is responsible for making judicial appointments and it consists of fifteen persons.
On advice of the collegium, judges are appointed by the President of India. The Collegium System has never been mentioned anywhere in the Indian Constitution or any other legislation. However, reiterating this nation’s judiciary independence and political influence over judge nominations, the Hon’ble Supreme Court of India did note that as well. This method is favored by its proponents who say that it ensures independence of judiciary and appointment of fair and impartial judges in our country. On other hand, critics say that this system is ineffective because it lacks accountability or transparency yet often faces corruption and nepotism allegations.
India’s Collegium system
Due to its prominence and authority, the Indian Supreme Court, which has the title of being the most powerful court in the world, is known for its Collegium system.[1] The Collegium System’s primacy in the 1990s allowed the Supreme Court to convene throughout the judicial selection process, which resulted in the
extension of the Judicial Review Powers. The appointment of judges to the courts in India is done through the Collegium system. In this system, the appointment of judges to the High Court and Supreme Court is carried out by four other senior judges in addition to the Chief Justice of India.
To put it briefly, their primary responsibility is to assign judges to courts. The purpose of the Collegium System was solely to ensure that neither the Executive nor the Legislative would interfere in matters about the appointment of judges in the Judiciary because our Constitution recognizes the separation of powers between these three bodies—the Executive, Legislative, and Judiciary. The concept that each of the three primary pillars of democracy has a distinct job and set of powers—even if they collectively form the framework of our democracy—was added to the doctrine of separation of powers by Montesquieu.[1]Therefore, in actuality, Judicial Independence—the Constitutional Vision outlined in the Indian Constitution—will be achieved if there is no intervention.
However, India’s political and judicial histories make it abundantly evident that there has always been rivalry and conflict between the executive and judicial branches. They have always been subject to political interference, which further undermines the fundamental tenet of exposing justice. Because the wisest people in the Collegium are the senior-most Judges of the Supreme Court and the Chief Justice of the United States, it is thought that if this system functions effectively without political influence in the process of appointing and transferring the judges, this will be nothing short of a miracle.
The Collegium System’s Origins
Although not mentioned in the constitution, “collegium” became significant legally after being pronounced by courts. The idea behind this system was first proposed by the Bar Council of India during a national conference for lawyers held in Ahmedabad on 17th October 1981. These authorities recommended that Supreme Court candidates should be selected through collegiums
- The Indian Chief Justice
- Five senior Supreme Court justices
- The Supreme Court Bar Association and the Bar Council of India would each have two representatives.
Hence, it will be mandatory for the President to implement the proposal of Collegium System although he can ask for reconsideration in certain circumstances.
A collegium system should be established in India, according to Bhagwati Judge of the Supreme Court, who focused on this point on December 30, 1981, in the case of S.P. Gupta v. Union of India. “Bhagwati J.in defining the word consultation agreed with Krishna Iyer J.’s statement in Sankalchan Sheth Case that consentaneity and consultation are not one and the same thing”[2]. In other words, they may agree but still have differences.
In his dissenting opinion in First Judges’ Case, Bhagwati J had a dig at this when he criticized President’s absolute discretion to appoint judges as a process which is both “wrong or inadequate” and which “sometimes could subtly be affected by irrelevant or extraneous considerations.”
In effect, he felt that it was irresponsible to grant powers to Presidents if such powers were going to be used for critical positions like courts without making any safeguards against misuse. For these reasons, he suggested that there should be a Collegium set up so as to advise the President while selecting a judge for Supreme Court or higher court.The consultations should widen their range of interests as well as diversify their recommending authority.
This way, if his appointments-oriented appointments include people who are supposed to know what qualities need for bench appointment and potential bench candidates; it would go far towards getting sincere judges—lastly—this being obligatory.
Establishment Of Collegium System With Judicial Pronouncement: Bhagwati J held that Articles 124(2) and 217(1) of the Constitution must be amended for India to establish a collegium of judges. Nevertheless, the majority decision in the first and Third Judges’ cases had effectively accomplished the task of establishing a collegium of judges in 1993 by the nine-judge Constitutional Bench of the Supreme Court and in 1998 by unanimous decision in the Third Judges’ case.
Pros
- The collegium system increases secrecy. Ruma Pal, the former judge of the Supreme Court of India, claims that this system is one of the country’s best-kept secrets. To guarantee the proper and effective operation of the institution was maintained a secret within the four walls of the organization, thickening the system.
- The collegium system keeps the judiciary and politics apart. It keeps the judiciary apart from the power of the legislature and the executive. When there is government involvement, the courts are free to act impartially and without favoritism. This guarantees the governance of the doctrine of separation of powers.
- Political pressure has been the cause of Supreme Court judge transfers on multiple occasions. As a result, giving the executive branch the power to remove judges would diminish the judiciary’s independence and put an end to its useful functioning. Since the collegium system ensures judges’ independence and allows them to perform their duties without fear or interference, it would be perfect for a fair operating court.
- The executive branch lacks expertise or information regarding the demands of judges when compared to the CJI. The collegium system ensures that the appropriate individual holds the position of Supreme Court Judge.
Cons
- This process does not provide guidelines for selecting candidates for the position of Supreme Court judge, which opens the door to nepotism and bias. This makes it impossible for the worthy people to be chosen as judges.
- Due to the collegium system’s lack of testing criteria, absence of background checks on applicants, and lack of administrative oversight, it may choose the wrong applicant while rejecting the qualified one.
- The Court has been permitted to nominate people, which will stress the judges because they already have a lot of cases ongoing and limited time.
- The concept of checks and balances is flawed in this system. Three organs function somewhat independently in India, but they balance each other out and prevent any organ from becoming overly dominant. The judiciary has a great deal of power to choose judges since it is dependent on the executive branch, which makes decisions based on the advice of the Chief Justice of the Supreme Court and the senior justices. This may result in power abuse.
- The nation’s ability to maintain peace and order is especially harmed by this method’s reduced transparency in the court system.
Conclusion
Since every judicial appointment procedure has potential advantages and disadvantages, no single procedure can be considered ideal. Despite this, the commission system is probably a very effective mechanism for appointing judges to ensure judicial independence and maintain public trust in the nomination process. The panel should include representatives from the executive, legislative, judicial, legal, and lay sectors of society to ensure the effectiveness of this process. Furthermore, an assurance should be provided that the commission employs a transparent and publicly accessible process. The operating methodology and organizational structure of the South African Judicial Service Commission could be a useful reference point in this context. This kind of mechanism might be quite helpful in guaranteeing that the most qualified people are assigned to judicial positions.
Nonetheless, the nomination process for candidates seeking appointment as judges in the higher courts has not been adequately handled by the Collegium of Judges. No guidelines or norms are guiding the Collegium’s performance of its tasks. Its decisions “are cryptic, enigmatic, and secret.” Iyer declared that the existing collegiate elitism was the “vanishing point of democratic ideals in the judicial pyramid” and that the Collegium had been “delayed, capricious, and tarnished by favorites.”
