Supreme Court Collegium: Moulding Traditional Process to Necessary Needs
Author : Harshit Sharma, Amity Law School, M.P.
“It takes one to know one.”
Meaning that people who behave in a certain way or have certain character traits are better at recognizing such qualities in the people around them because they themselves have such qualities.[i]
This quote has founded the base for the operation and evolution of the Collegium System in India for the purpose of appointment and transfer of the judges of High Courts and Supreme Court of India.
Before heading towards the analysis of the Collegium System, per the recent scenario, it is worthwhile to have look at the general description and meaning of the word “COLLEGIUM”.
Black’s Law Dictionary defines Collegium as, “A word having various meanings; e. g., an assembly, society, or company; a body of bishops; an army; a class of men. But the principal idea of the word was that of an association of individuals of the same rank and station, or united for the pursuit of some business or enterprise.”[ii]
Merriam-Webster, quotes the meaning of the word Collegium as,“a group in which each member has approximately equal power and authority” and the same is borrowed from the Latin language, but its journey into the English language made an unusual stop at Russian, a Slavic language. Russian borrowed the Latin collegium (“society”) as kollegiya, a word used for an advisory board or committee whose members share power. Kollegiya entered the English language in 1917, and with gradual modifications, it was eventually restored to its original Latin spelling as Collegium.”[iii]
Therefore, to precisely quote the Supreme Court Collegium, “it is a system which consists of 5 senior-most Judges including the Chief Justice of India. 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. In case of difference of opinion, the majority view will prevail. Since Constitution mandates consultation with the Chief Justice of India, for the appointments to the judiciary, for the same the collegium model of appointment was evolved.”[iv]
IMAGE 1: Present Collegium Members till March 06, 2019 (Retirement of Hon’ble Justice A.K. Sikri).[v]
Historical Evolution of the Collegium System in India
Under the constitutional scheme of things, judges of the higher courts (Supreme Court and High Courts) shall be appointed by the President after consultation in the case of judges of Supreme Court by such judges of Supreme Court and High Court as he may deem necessary [Art 124 (2)]. Provided that in appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted, and in the case of a judge of a High Court after consultation with the Chief Justice of India and the Governor of the State [Art 217 (1)] and in the case of a judge other than the Chief Justice the Chief Justice of High Court.
The language of the Constitution does not speak of appointment by the present collegium system which clearly and unequivocally gives the power to appoint such judges by the President. The present system emerged when the word ‘consultation’ was subjected to strict scrutiny and intense examination on the judicial scales of interpretation which resulted in the emergence of two judgments of the Court.
The first judgment Supreme Court Advocates on Record Association vs. Union of India[vi], the Apex Court observed that, in the matter of appointment of judges of the Supreme Court and the High Courts the Chief Justice of India should have primacy. The Court held that the greatest significance should be attached to the view of the Chief Justice of India formed after taking into account the views of the Supreme Court.
In the Presidential (K.R. Narayan Ji) reference case[vii] the majority of the nine-judge bench held that in regard to the appointment of judges to the Supreme Court under Article 124 (2), the Chief Justice of India should consult “a collegium of four senior-most judges of the Supreme Court”. The collegiums’ opinion should be in writing and the Chief Justice of India should send his own recommendation along with that of the collegium to the President.
Thus, while the former judgment gave primacy to the opinion of the Chief Justice of India, the latter gave the concept of the collegium system which is being followed till the present times. The present system, thus, in the real sense, gave all the powers of appointment to the collegium with the Chief Justice of India as the initiator (with 4 senior-most judges of the Supreme Court of India) and the President only becoming a formal approver.[viii]
- Judges Appointment & Transfer Model in different countries
Here we will be discussing the models of the Judge’s appointment & transfer in the countries of United Kingdom, South Africa, Australia, Canada, China and thereby the same will be analyzed with respect to the Indian Collegium System.
The descriptions of the system are hereby reproduced:[ix]
- United Kingdom:
The judicial appointments commission is responsible for the selection of judges in England and Wales. It is a non-departmental public body which was created on April 03, 2006. It consists of 15 members: two from the legal profession [1 barrister, 1 solicitor] five judges, one tribunal member, one lay justice [magistrate], six lay people including the chairman.
Candidates submit a nine-page application form and are to be judged on merit alone measured by five important qualities- intellectual capacity, personal qualities [integrity, independence, judgment, decisiveness, objectivity, ability and willingness to learn], ability to understand and deal fairly, communication skills and efficiency.
- South Africa:
The judiciary of South Africa consists of: –
- The Chief Justice of South Africa, the deputy chief justice and other judges of the constitutional court.
- The President, deputy president and other judges of the Supreme Court of Appeal.
- The judge president, deputy judge’s president and other judges of each high court.
Permanent judges in the higher courts are appointed by the President of South Africa in consultation with the judicial service commission as well as leaders of political parties represented in South African National Assembly.
The judicial service commission’s membership includes:
- The Chief Justice of South Africa who presides over its meetings.
- The President of the Supreme Court of Appeal.
- One Judge President designated by the Judges President.
- The minister of justice and constitutional development, or his/her designated alternate.
- Two practicing advocates nominated from within the advocates profession
- Two practicing attorneys nominated from within the attorney’s profession
- One teacher of law, designated by the teachers of law at South African universities [typically the dean of one of the faculties of law]
- Six members from the national assembly [including three from the opposition parties].
- Four members from the National Council of Provinces.
- Four more persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the national assembly.
The Attorney General consults widely with interested bodies seeking nomination of suitable candidates. In addition, the Attorney General also writes to:
- State and territory attorneys general
- Chief Justice of the High Court
- Justices of the High Court
- State and territory chief justices.
The Attorney General then considers the field of highly suitable candidates and writes to the Prime Minister seeking his/her and/or cabinet approval. If approved by the cabinet, the Attorney General makes a recommendation to the Governor General who considers the appointment through the federal executive council process. Once the cabinet has approved the Attorney General’s recommendation of the nominee, the appointment papers [including the Commission of appointment] are forwarded to the executive council for consideration by the Governor General. If in agreement, the Governor General signs the Commission of appointment and it is fixed with the great seal by way of authentication. Once the appointment has been approved by the Governor-General in executive council, the attorney general publicly announces the appointment.
Appointments to the superior courts in each province or territory:
Candidates for these courts are screened by a judicial advisory committee established for each province. Each committee is composed of representatives of the federal and provincial governments, the provincial [or territorial] law society, the Canadian Bar Association, the judiciary, and the general public.
Lawyers who meet the legal and constitutional requirements can apply, as well as provincial and territorial court judges. These candidates must complete a comprehensive Personal History Form [PHF]. In its assessment of each candidate, the committee reviews the PHF and consults references and other persons both in and outside legal realm.
Following its review, the committee categorizes lawyer candidates as “recommended” or “unable to recommend” for appointments with reasons for this decision. In case of judicial candidates, the committee does not categorize the applicant but instead formulates “comments” regarding the application. A list of all candidates reviewed by the committee, together with the above categorization and reasons or “comments” in the case of judicial candidates is forwarded by the committee to the federal minister of justice. The minister draws an appointment from the list of names received from the committees and recommends that individual to the federal cabinet. When the appointment is that of a Chief Justice or a Puisne Chief Justice, the recommendation to the cabinet is made by the Prime Minister of Canada.
A more plausible, practical and workable solution would be to appoint the judges of the higher courts through an All India Examination to be conducted by the Union Public Service Commission [under Article 312 of the Constitution] in a fair and transparent manner and an intensive post selection one- or two-year training program be framed just like the judges of the subordinate courts are appointed by the State Public Service Commission under Article 234 of the Constitution.
In this context it would be prudent to mention the appointment system of judges in China:
In China a High Court judge can be appointed at 23 after he/she passes the National Judiciary examination [similar to the Indian Civil Services] examination and completes the stipulated period of professional training. [The Hindu, December 27, 2010].
It would be also pertinent to quote Justice D.A. Desai [Chairman, Eleventh Law Commission-Report 116, 1986] in this regard:
“Senior and well-placed members of the bar are reluctant to accept judicial services a fact universally accepted. Service with poor or adequate salary is hardly attractive to a lawyer who has started earning because he knows that sky is the limit. If an experienced lawyer is impervious to judicial service or social accountability, why not catch people young and give them intensive training. A short practice hardly trains effectively. If, on the other hand, intensive pre-service training is given to fresh young recruits, they will turn out to be better judges. There are countries in which practice at the bar is not a pre-requisite or essential qualification to be eligible to become a judge!”
A Critical Analysis: Quoting Pros & Cons of the Collegium System
Collegium System: An Evil of Society
One set of jurists and intellectuals pose their assent to the fact that the Collegium system is a tool of Evil persisting in our society, based on the following arguments:[x]
- Inspite of being a democracy, the judges appoint judges in India.
- Collegium System could not appoint judges as per the vacancies in the courts due to various reasons.
- If the constitution makers had liked this way of appointment of judges, they would have envisaged it in the original constitution itself.
- In the year 2009, Law Commission of India said that nepotism and personal patronage is prevalent in the functioning of the Collegium System.
- Collegium System is recommending the appointment of the judges without considering the talent available in the market.
Furthermore, the same lot of individual advocates the process of & the establishment of Judicial Appointments Commission on the following grounds:[xi]
The questions being raised about selection by Collegium [Chief Justice and four senior-most judges] are the following:
- Lack of access to records to the public who are elevated to the bench from amongst the members of the bar.
- No information regarding antecedents, the background of the persons who are appointed as judges.
- Biasness, opaqueness, and nepotism in selection.
- Selection is done in a non-fair manner.
The contention that the appointment of judges by a Judicial Appointments Commission would undermine judicial independence is untenable. Though independence is necessary for the proper functioning of the judiciary, the following points need to be understood: –
- Independence cannot be used as a tool to shield the required/necessary transparency
- Access to information cannot be denied under the guise of judicial independence.
Also, independence needs to be understood from two different perspectives:
- Independence in appointments/selection.
- Independence in working.
While the latter is imperative for maintaining the dignity of the judiciary, the former independence by a non-consultative opaque selection process with total lack of information will only erode people’s faith in its fairness and functioning. Independence in the former would mean elevation of only such persons to the bench the records [background, antecedents, reputation, standing at the bar, work] of which are known only by the Chief Justice and four senior-most judges with the President only putting a formal stamp of approval.
The collegium being a body whose primary task is of justice dispensation may have neither the requisite expertise nor the infrastructural backing to scrutinize each and every application properly. Many at times it has to rely solely on the strength of representation made by the High Court or senior members of the bar. If inefficient members are elevated, it will affect the working capacity and will be reflected in the judgments the significance of which are always far-reaching and of greater magnitude.
The appointment by a Judicial Appointments Commission has worked out the following modalities:
- The Commission shall consist of seven members- The Chief Justice of India, two judges of the Supreme Court, Law Minister, two eminent persons as members and Secretary (Justice) in the Law Ministry as member secretary.
The points of controversies being raised are as follows: –
- The executive members in the commission would make the selection as per their own whims and fancies and in a partial manner undermining judicial autonomy and impropriety and adversely affecting its functioning.
- The eminent persons who will have political patronage or other lucrative promises by the government and other non-judicial members will have a larger say making it a one-sided affair [will be tilted more towards them in forming an opinion during selection].
Both points need a serious debate: –
- As reiterated earlier, independence needs to be looked into only from the perspective of independence in working and functioning. Asking freedom in the selection process under the guise of independence would more likely to make it biased and prejudiced. Given the heterogeneous nature of the composition of the commission, the selection would be thorough and more rigorous after an informed debate, diverse opinion/expertise and better infrastructure, the information of which should be available to the citizens as well as the legal luminaries both under statutory law and through open consultation.
- What are the criteria for judging that the executive will play a dominant role in the selection process? Under what method the conclusions can be arrived at that the judicial members would have no say and will only sit as mute spectators?
Therefore, they regard that the Collegium system should be withered away.
Collegium System: A Ray of Hope for maintaining trust in the Legal System
Other sets of thinkers advocated the fact that Collegium system is the best model for the appointment of judges to High Courts and Supreme Court, but due to changes in time, it requires reconsideration. The following arguments have been quoted on behalf of it:[xii]
- Collegium System assures, that judiciary should separate from the executive as mentioned in Article 51 of the Indian Constitution.
- It is made up of senior judges, so good quality judges are appointed.
- It prohibits political interference.
- it gives importance to experience and administrative vision.
- nominated judges will work without favor of the government.
- Quality is maintained in selection.
Moreover, the stance that was taken in favor of Collegium, when the Apex Court of India observed that the NJAC System is Ultra-Vires to the Constitution, the following contentions were put-forth, which regarded that restoration of Collegium System is not a blow to the Accountability (the researcher is of the same opinion):
Some system is needed to be established for the transfer and appointment of judges, so when NJAC was declared null & void, it was just to restore the Collegium System with necessary modifications & alterations.
In the NJAC system, the government has a much more role in the appointment and transfer of judges which seems to be a clear-cut situation of arbitrariness and infringement of Independence of Judiciary. So, if we would have adopted this system then we could say that Judicial Accountability is lost, but while sustaining with the age-old concept of Collegium provides the accountability in all its facets.
This could be quoted by citing the recent step the Hon’ble Supreme Court of India took to make the proceedings of appointment and collegium transparent as well as accountable to the general public or the real sovereigns of this Nation by uploading all the details of the judges that they have decided to either promote or elevate to the High Courts or the Supreme Court on the official website of the Supreme Court of India.
Moreover, the recent controversy that stood up with the question of elevation of Justice Kurian Joseph to the Supreme Court of India shows that the tussle between the Judiciary and the Executive is still not ended, but it shows that collegium system at present after being altered on various occasions have sustained the concept of Judicial Accountability.
However, the real issue is not who has the last word in the appointment of judges, but who the right persons are to be selected for appointment as judges. In the turf war between the executive and the judiciary, this vital aspect has been lost sight of. The concept of Accountability is not blown because it was never pondered upon. If we take the series of Judges transfer case, we ought to get a highlight that the question always stressed upon who need to appoint and not on who needed get appointed and this makes the difference between the accountability standards.
Furthermore, collegium system being a system where the ultimate authority is in the hands of the Chief Justice of India and the Senior-most Judges of Supreme Court makes these dignitaries accountable to the people indirectly while appointing the Judges to the Higher Judiciary because their decision is indirectly reviewed by the representatives of public who went on to occupy the seats in the cabinet forming part of the Executive as well as Legislative Branch.
Thus, these set of individuals sees the Collegium system as the sole accountable model for the appointment & transfer of judges of Higher Judiciary (Supreme Court and High Court), which in the opinion of the author stands correct.
Conclusion and Suggestions
Analysing the Pros & Cons of the Collegium System, it is observed that, the lack of transparency in the proceedings took up by the Collegium of the Supreme Court and non-disclosure of the reason for the rejection or the approval in case of appointments and the transfer of judges is the biggest problem which is faced with this set of procedure for the appointment and the transfer of Judges to Higher Judiciary.
The same aspect can be illustrated with the aid of Justice Jayant Patel’s Case & the non-upload of the collegium suggestions on the Supreme Court website in relation to Justice Rajendra Menon’s elevation to Supreme Court of India.
After going through the facts of the former case, one flaw that is clearly visible is that we are neither aware of the reason behind the resignation which is filed by Justice Jayant Patel nor the basis on which his resignation has been approved by the Collegiums of Supreme Court. To quote the recent step which is taken up by the Hon’ble Supreme Court of India under the able leadership of Hon’ble Chief Justice of India Shri Dipak Misra, for disclosing all decisions relating to the elevation, transfers and appointments of judges made by the collegium on the official website of the Supreme Court of India ( please refer https://sci.gov.in/collegium-resolutions) to a great extent solves the problem of the issue involved in the present fact-sheet. (This could be stated as the aftermath of the Jayant Patel’s resignation case).
Moreover, in the latter case when everything was finalized to uplift Hon’ble Justice Rajendra Menon (Chief Justice of Delhi High Court) to the Hon’ble Supreme Court of India, only the non-uploading of the suggestion of the Collegium to the Supreme Court website was a huddle because of which he could not be appointed as the Supreme Court.[xiii]
Thus, even after providing transparency in the form of uploading Collegium resolutions on the website, has raised various questions as to the accountability and transparency of the working of the Collegium System.
Therefore, it is quoted that this bold step is not an end in itself, to resolve the transparency problem of Collegiums system, other measures are intended to be taken in this behalf which entails to:
- The production of all the information regarding the judge or an advocate who is recommended by the collegium to be elevated or promoted to the higher judiciary which should include the names of his close relatives ( which shows whether Nepotism played a role in this), details of his office and related-party associations (which shows whether Favouritism played a role in this), political association and moreover his career progress and every capability & capacity which has made him qualified to be appointed as the Judge to the Higher Judiciary.
- Non-upload of the names of advocates whose candidature for the elevation is disregarded, as it will affect their over all practice as an advocate in the requisite courts.
- Establishment of commission for keeping check on this regard, which shall include the former Chief Justices & Judges of Higher Judiciary.
- Transparency in the file as it moves from the SC to the government, the exchange between them, and the final result. That is the real process for which transparency is needed, revealing amongst other things, the extent of regime pressure.[xiv]
- Press-release of the deliberation of the Collegium should be made, with the minute to minute of the discussion and what business is taken into account for each candidate.
- Providing Constitutional backing to the Collegium system, so as to enable the same to be accountable to the public (as it has no rules & regulations of procedure), which tendto create an arbitrary situation in appointment & transfer of judges.
- Another step which should be taken in this regard is that, a cooling off period should be given and a reasonable time should also be provided for taking the suggestion from the persons likely to be affected thereby (such as Judges & advocates whose appointment or transfer is sought to be done) and then the decision should be made after giving reasonable opportunity of being heard. Moreover, the members of the Bar should also be given opportunity to provide their suggestions, because ultimately, they are the ones who will be directly affected by the decision of the collegium. Therefore, these can be the steps to move in the direction of making the collegiums system more transparent.
Thus, to conclude hereI would like to portray the though given by the Eminent Senior Lawyer of India, Shri, F.S. Nariman who said that, “the collegium had to be receptive to suggestions from responsible members of the lawyer community.”[xv]
Therefore, it will be the concerted efforts from both the sides including Bar & the Bench to bring that form of Collegium which not only facilitate the efficient appointment to the Higher Judiciary, but also be accountable to the real sovereigns and to effectuate the filling of vacancy, as poon as practicably possible.
[i]Khalid Sayed,Could someone translate the this in English “Heere ki parakh sirf johri ko hoti hai”, QUORA (Jan. 29, 2019, 05:40 PM), https://www.quora.com/Could-someone-translate-this-in-English-Heere-ki-parakh-sirf-johri-ko-hoti-hain.
[ii]The Law Dictionary, What is Collegium, THE LAW DICTIONARY (Jan. 29, 2019, 05:48 PM), https://thelawdictionary.org/collegium/.
[iii] Merriam Webster, Collegium, MERRIAM WEBSTER (Jan. 29, 2019, 06:05 PM), https://www.merriam-webster.com/dictionary/collegium.
[iv] Aditya Dubey, What is Supreme Court of India Collegium and How it Works?, ADVOCATE KHOJ (Jan. 29, 2019, 06:16 PM), http://www.advocatekhoj.com/blogs/index.php?bid=597515a97110ac9a612013454&bcmd=VIEW.
[v]Murali Krishnan, Justice Arun Mishra is the new entrant in the Supreme Court Collegium, BAR & BENCH (Jan. 29, 2019, 06:21 PM), https://barandbench.com/justice-arun-mishra-new-entrant-supreme-court-collegium/.
[vi] Supreme Court Advocates on Record Association v/s. Union of India, 1993 4 S.C.C. 441 (India).
[vii] Presidential reference case, A.I.R. 1999 SC I (India).
[viii]Saurabh Sinha,The Collegium Syndrome: A Critical Appraisal, YOJANA (Jan. 29, 2019, 06:50 PM), http://yojana.gov.in/the-collegium-syndrome.asp.
[x] Hemant Singh, What is the Collegium System and How it works?, JAGRAN JOSH (Jan. 30, 2019, 06:55 AM), https://www.jagranjosh.com/general-knowledge/what-is-the-collegium-system-and-how-it-works-1525257473-1.
[xii]Amol Kamble, What are the positives and negatives of the Collegium System, MAGIQ?A (Jan. 30, 2019, 07:13 AM), https://www.brainyias.com/answerwriting/index.php/questions/answer_list/what-are-the-positives-and-negatives-of-the-collegium-system-/243.
[xiii]Express Web Desk, Judges should stay away from ‘political thicket’, says Justice Lokur, THE INDIAN EXPRESS (Jan. 30, 2019, 08:01 AM), https://indianexpress.com/article/india/supreme-court-collegium-system-justice-madan-lokur-5552692/.
[xiv] Rajeev Dhavan, Judicial Appointments: A new fully transparent system needed, THE ECONOMIC TIMES (Jan. 30, 2019, 07:55 AM), https://economictimes.indiatimes.com/news/politics-and-nation/judicial-appointments-a-new-fully-transparent-system-needed/articleshow/61058387.cms.
[xv] Shreeja Sen, Supreme Court identifies four ways to improve collegium system, LIVE MINT (Jan. 30, 2019, 08:04 AM), https://www.livemint.com/Politics/lXZxASF3QwbwOp6wXM5VvN/SC-identifies-four-points-for-considering-improvement-of-col.html.