Collegium System In Appointment Of Judges Is Unworthy.
Author: Mr. Aditya Aryan, ICFAI Law School, Dehradun.
Many of us may have heard the word collegium for the first time when there were allegations against Honourable Justice Dipak Mishra as the collegium mounted a virtual revolt against the ex-chief justice.
Now the main question is what is collegium system?
Answering to that, The collegium system is a system under which appointments or elevation of judges/lawyers to Supreme Court and transfers of the judges of High Courts and Supreme Court are decided by a council of the Chief Justice of India and the four senior-most judges of the Supreme Court.’ There is no mention of the Collegium either in the original Constitution of India or in any of the successive amendments.
The Collegiums System of appointment of the judges was brought through “three judges case” which interpreted constitutional articles on October 28, 1998.
How does the collegium system works?
The Collegium sends the recommendations of the names of lawyers or judges to the Central Government. In the same manner, the Central Government also sends some of its proposed names to the Collegium. The Central Government does the review and investigate the names and resends the file to the Collegium. Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval. If the Collegium resends the same name again then the government has to give its assent to the names. But the time limit is not fixed to reply. That is the reason that the appointment of judges takes a longer time. We can take the example of Chief Justice of the Uttrakhand High Court. In this case, the Collegium recommended the name of the Chief Justice K.M. Joseph for the judge of the Supreme Court but the central government refused due to political reasons.
Currently, there are 146 names that are pending for approval between the Supreme Court and Central Government for the last two years. Out of these 146 names, 36 names are pending with the Supreme Court Collegium, while 110 names are yet to be approved by the Central Government.
In the current time, there are 395 posts of the judges which are vacant in the High Courts and 4 posts in the Supreme Court due to the absence of mutual consent between the collegium and the central government.
These facts show that the appointment and elevation of judges/lawyers mostly based on the sources they hold rather than the talent they have
There are several criticisms which the collegium system faces due to such practice of appointment and elevation.
- Inspite of being a democracy, the judges appoint judges in India
- If the constitution framer had liked this way of appointment of judges, they would have proposed it in the original constitution itself.
- In the year 2009, the Law Commission of India said that nepotism and personal favoritism is prevalent in the functioning of the Collegium System.
- Collegium System is recommending the appointment of the judges without approving the talent.
If the same unworthy system continues, then what is the need for judiciary examinations. The students prepare day and night for the examination but there also lies a big pile of corruption and political indulgence. Still, In some parts of the country, the seats are being sold and the money powered people pay for the seat. Hence, the deserving ones lose their seat to money powered people. Even after one passes the judiciary examination and interview one has to wait for a very long time to get promoted if they don’t have enough sources or if they are not willing to pay for the bribe asked.
The collegium system is nowhere mentioned in the constitution or any regulatory body but It won’t be wrong to say that the major part of presence in elevating and appointment of judges and lawyers lies with them. Whom they will want to choose will be elevated or an appointment. Although that is not the procedure anywhere mentioned it has been prevailing as a custom.
The judiciary system needs to be strengthened and needs people who have enough talent and capability to provide justice, but the selection of some of the people is in itself not justified which brings a big question mark on the judicial system.
Based on the information shared above, it becomes very clear that the current Collegium System of the country is trying to make “cricketer son cricketer” and “judge’s son judge” without giving chance to the talent available in the system.
Therefore undeniably Collegium System is not a healthy practice for a democratic country like India. The Collegium System is not the constitutional structure, so the central government should make appropriate laws to pull out the Indian Judicial System from the monopoly of some families.
If you will see the Figures related to the Indian judiciary, you will see that the Indian judiciary is occupied by a few Indian families. Year after years the persons related to these families become the judge or control the offices in the court. Therefore, these issues need to be addressed and solved, and the government needs to make appropriate laws by which there can be a proper appointment and elevation of judges and lawyers so that there can be equal opportunities for others to participate rather than trying looking for sources for their appointment and elevation.