Appointment of judges of Supreme Court is a crucial process governed primarily by article 124 (2) of the Constitution. Judges of the Supreme Court are appointed by the President after consultation with Judges of the Supreme Court and High Courts. The collegium system has been evolved through judicial interpretation for the appointment of judges. The Chief Justice of India and the four senior-most judges of the Supreme Court constitute the collegium system. It is responsible for the appointment and transfer of judges in the Supreme Court and High Court. Appointment of judges of the Supreme Court is an important topic under GS paper 2 (Polity and Governance) of the UPSC Examination.

Collegium system in the Indian judiciary is a method used for appointments and transfer of judges to the higher judiciary, particularly the Supreme Court and the High Courts. In this system, the appointments and transfers are primarily decided by a group of five senior judges, typically the Chief Justice of India along with four senior judges of the Supreme Court.

Constitutional Provisions about Appointment of Judges of the Supreme Court

• The judges of the Supreme Court are appointed by the president. The chief justice is appointed by the President after consultation with such judges of the Supreme Court and the high courts as deems necessary.
• The consultation with the chief justice is obligatory in the case of the appointment of a judge other than the Chief Justice.

Composition of the Supreme Court

• The Supreme Court consists of 34 judges (one chief justice and thirty-three other judges).
• In 2019, as per the Supreme Court ( number of Judges) Amendment Act, 2019, the centre notified an increase in the number of Supreme Court judges from 31 to 34, including the Chief Justice of India.

Qualifications of Judges

• According to Article 124(3) of the Constitution, a person should have the following qualifications to be appointed as a judge of the Supreme Court.
  • Should be a Citizen of India.
  • Should have been a Judge of a High Court for at least five years or have been an advocate of a High Court for at least 10 years or should be a distinguished Jurist in the opinion of the President.
  • No minimum age has been prescribed by the Constitution for appointment as a judge of the Supreme Court.

Evolution of the Collegium System

The collegium system evolved through judicial interpretation rather than being explicitly provided for in the Indian Constitution. The system gained prominence after a series of judicial pronouncements, particularly the Three Judges Cases.

National Judicial Appointments Commission Act of 2014

• Constitution of the Commission: It established the National Judicial Appointments Commission, consisting of the Chief Justice of India, two senior-most judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons.
• Role in Appointments: The NJAC was tasked with the responsibility of recommending candidates for appointment as Chief Justice of India, judges of the Supreme Court, Chief Justices of High Courts, and other judges of High Courts.
• Process for selecting the two eminent persons: They were to be nominated by a committee consisting of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha or the leader of the largest opposition party.
• Functions and Powers: The Commission was empowered to recommend individuals for appointment as judges based on their merit and suitability. It was also responsible for recommending transfers of judges.

On 16 October 2015, the Constitution Bench of the Supreme Court by a 4:1 majority upheld the collegium system and struck down the NJAC as unconstitutional

Issues in the Appointment Process of Judges (Collegium system in India)

The Collegium system in India has faced several criticisms and issues over the years

• Lack of Transparency: The process of appointment and transfer of judges is often seen as opaque, with decisions made behind closed doors without clearly defined criteria for the selections.
• Lack of Accountability: The Collegium system lacks accountability as there is no mechanism for oversight or review of its decisions. This absence of accountability has led to concerns about nepotism, favoritism, and other biases influencing judicial appointments.
• Against the principle of separation of powers: Judges appointing judges goes against the principle of separation of powers between executive and judiciary and the principle of check and balance.
• Judges appointing judges: It is against the principle of separation of powers which is the basic structure of the Constitution. If judges are directly involved in appointing their colleagues, it could raise questions about impartiality and fairness in the judicial system.
• Promotion of Mediocrity: According to set convention, only senior-most judges are appointed to the Supreme Court, overlooking several talented junior judges and advocates.
• Meagre representation of women: The collegium system does not ensure adequate representation of women in the judiciary. For example, In the Supreme Court, there are currently four women judges out of the sitting 33. Women’s representation in percentage terms 12.5% in SC,13% in HCs and 35% in subordinate courts.
• Allegations of nepotism and favouritism: Such allegations can erode public trust in the judiciary and undermine the credibility of judicial appointments.

Reforms in the Process of Judicial Appointments

• Formation of Search-cum-Evaluation Committee: It is proposed by the Ministry of Law and Justice, to bring transparency in judicial appointments through the collegium system. It will prepare a panel of eligible candidates for consideration by respective collegiums.
• Clear and objective eligibility criteria: Clear and objective eligibility criteria should be formulated to assess the performance and suitability of candidates. These criteria must be made public to ensure transparency.
• Public Input and Immunity: The SEC should invite public input regarding shortlisted candidates.
• Involvement of Executive and Legislature: The selection process for judges should involve all three branches of government Executive, Legislature, and Judiciary. The Law Commission suggested a law to restore the primacy of the Chief Justice of India (CJI) while ensuring executive participation in judicial appointments should be considered.
• Transparency in Collegium Decisions: Decisions made by the Supreme Court collegium should be disclosed to the public to reduce the culture of secrecy associated with judicial appointments. Eg. Complete records, including video or audio recordings, of collegium deliberations should be maintained. This would ensure transparency and provide insight into the decision-making process.

Conclusion

Collegium system, despite its criticisms and shortcomings, remains an important mechanism in the appointment and transfer of judges in India. Over the years, it has evolved to address concerns regarding transparency and accountability, yet challenges persist in achieving complete objectivity and fairness. While the system has contributed to the independence of the judiciary and safeguarded it from executive interference, there is a continued need for reforms to enhance its effectiveness and address issues of diversity, representation, and efficiency.

FAQs

MCQs

1. Who constitutes the Collegium for the appointment of Supreme Court judges?

A. Prime Minister and Law Minister
B. Chief Justice of India and four senior-most judges
C. President and Vice President
D. Chief Justice and Attorney General

2. What was the outcome of the Second Judges Case (1993)?

A. Establishment of JAC
B. Affirmation of the Collegium System
C. Transfer of powers to the executive
D. Abolition of the Supreme Court

3. Which body ultimately approves the recommendations made by the Collegium?

A. Parliament
B. Chief Minister
C. President of India
D. Supreme Court

4. Which of the following is a major criticism of the Collegium System?

A. High level of transparency
B. Inclusion of diverse perspectives
C. Lack of accountability
D. Efficient appointment process

5. What was the Supreme Court's stance on the Judicial Appointments Commission in 2015?

A. It was upheld
B. It was deemed unconstitutional
C. It was expanded
D. It was renamed

GS Mains Questions and Model Answers

1. Analyze the significance of the Collegium System in maintaining the independence of the judiciary in India.

Answer: The Collegium System plays a crucial role in maintaining the independence of the judiciary in India by ensuring that the appointment and transfer of judges are free from executive interference. By empowering senior judges to recommend appointments, the system fosters an environment where judicial integrity and professionalism can thrive. This independence is essential for upholding the rule of law and protecting citizens' rights. However, the lack of transparency in the Collegium process has led to debates on the need for reforms to enhance accountability while preserving judicial independence.

2. Discuss the criticisms and challenges faced by the Collegium System.

Answer: The Collegium System faces several criticisms, including its lack of transparency, accountability, and inclusivity. Critics argue that the process of judicial appointments is opaque, which can lead to perceptions of favoritism and nepotism. Additionally, the absence of a structured mechanism for evaluating candidates raises concerns about meritocracy in judicial appointments. The challenges of managing judicial appointments in a rapidly changing socio-political landscape further complicate the Collegium's role, necessitating reforms to balance independence with accountability in the judicial system.

3. Evaluate the impact of the Collegium System on the quality of judicial appointments in India.

Answer: The Collegium System has had a significant impact on the quality of judicial appointments in India. By involving senior judges in the selection process, the system aims to ensure that only those with a strong track record and integrity are appointed to higher judiciary positions. This focus on merit helps maintain the quality of judicial services and upholds public confidence in the judiciary. However, the criticisms surrounding the lack of transparency and accountability in the selection process suggest that improvements are necessary to enhance the credibility and effectiveness of judicial appointments.

Previous Year Questions on Collegium System

1. UPSC CSE Prelims 2020

Question: Which of the following is true regarding the Collegium System?
A. It includes members from the executive.
B. It is a system for appointing judges in the higher judiciary.
C. It was introduced by a legislation.
D. It is accountable to the Parliament.

Answer: B

Explanation: The Collegium System is a method for appointing judges in the higher judiciary, comprising senior judges of the Supreme Court.

2. UPSC CSE Mains 2021 (GS Paper 2)

Question: Discuss the role of the Collegium System in the appointment of judges and its implications for judicial independence.

Answer: The Collegium System plays a pivotal role in judicial appointments by ensuring that senior judges recommend candidates based on merit and integrity, thus promoting judicial independence. However, its lack of transparency has raised concerns about accountability and public perception, highlighting the need for reform to enhance the system while safeguarding judicial autonomy.

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