Supreme Court Collegium
The Collegium of the Supreme Court consists of 5 senior most Judges including the Chief Justice of India.
In this system 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.
They will consider the elevation of Chief Justices/Judges of High Court to Supreme Court, elevation of Judges of High Courts as Chief Justices and elevation of Judges.
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In case of difference of opinion, the majority view will prevail.
Since Constitution mandates consultation with the CJI is necessary for appointments to judiciary, the collegium model evolved.
There is no mention of the Collegium either in the original Constitution of India or in successive amendments.
What does the Constitution actually prescribe?
Article 124 - appointment of Supreme Court judges - It 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 - appointment of High Court judges. It 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.
How the Collegium system is evolved?
It has evolved through judgments of the Supreme Court (SC), and not by an Act of Parliament or by a provision of the Constitution.
First Judges Case (1981):
It declared that the “primacy” of the CJI’s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
Second Judges Case (1993):
SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
Third Judges Case (1998):
SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four senior-most SC judges.
Concerns raised over it
Extra-constitutional or non-constitutional body.
No seat for Non-Judge: This violates the principle of checks and balances.
Lack of transparency as meetings are held a closed door.
Chances of Favouritism and Nepotism
Overlooks several talented junior judges and advocates.
Embroilment in public controversies.
‘Biased’ Collegium: Successive collegiums not putting forth names disliked by the Government.
There have been no appointments from the category of distinguished jurists (under Article 124)
Appointments to the top court seem to be the preserve of judges from the High Courts with a handful of appointments from the Bar.
Attempts to reform the Collegium System
The attempt made to replace it by a ‘National Judicial Appointments Commission’ (through 99th Amendment Act, 2014) was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
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