Syllabus: Structure, organization and functioning of the Executive and the Judiciary
About Collegium System
- System for appointment and transfer of judges in Supreme Court (SC) and High Courts (HC) in India.
- Not rooted in the Constitution; evolved through Supreme Court judgments over time historically.
- CJI along with four senior-most SC judges recommends appointment and transfer of judges.
- High Court Collegium: led by incumbent Chief Justice and two senior-most judges of court.
- Government can raise objections, seek clarifications; if Collegium reiterates names, government bound to appoint.
Constitutional Provisions
- Article 124: SC judges appointed by President after consultation with CJI, HC/SC judges deemed necessary.
- Article 217: HC judges appointed by President after consultation with CJI, Governor, HC Chief Justice.
Genesis
- First Judge Case (1981): consultation doesn’t require concurrence; only exchange of views suffices.
- Second Judge Case (1993): reversed previous ruling; consultation means concurrence; CJI’s advice binding on President.
- Third Judge Case (1998): CJI must consult Collegium of four senior-most SC judges; adverse opinion by two judges blocks recommendation.
- NJAC Act 2014: aimed to replace Collegium but the five-judge bench declared unconstitutional threatening judicial independence.
Criticisms
- Lack of transparency: reasons for Collegium decisions not disclosed publicly causing accountability concerns.
- Judicial vacancies: struggled keeping up with vacancies; 3 SC vacancies, 380 HC vacancies (August 2022).
- Nepotism charges: Law Commission 2009 noted nepotism, political privilege rife in Collegium workings.
- Violates checks and balances: complete executive exclusion from judicial appointments lacking accountability mechanisms.
- Inadequate women representation: 4 women justices out of 33 SC; 11.5% women in High Courts.
Reforms
- 99th Constitutional Amendment 2014: provided for NJAC; struck down for violating judicial independence.
- Memorandum of Procedure (MoP): rules for judge appointments; framed by government and judiciary together.
- In 2015 the SC instructed new MoP for transparency but government didn’t adopt.
Way Forward
- Reform MoP: involve executive and judiciary representatives ensuring checks and balances in appointments.
- Expand eligibility criteria: open invitation for eligible candidates; include merit, suitability criteria beyond Constitution.
- Increase diversity: provide adequate women representation in judicial appointments addressing gender disparity.
- Increase transparency: maintain candidate lists; exchange opinions in writing; document Collegium proceedings in minutes.
- Law Commission recommendations: equal role for judiciary and executive; increase retirement age HC judges to 65 and SC judges to 68 years.
Q- The Collegium system for judicial appointments has been a subject of debate. Examine the evolution, criticisms, and suggest reforms to make the system more transparent and accountable. (15 marks, 250 words)