Supreme Court Collegium System

Context

The Supreme Court Collegium has recommended the appointment of Chief Justices in three High Courts, bringing the Collegium System into focus. The system governs recommendations for appointments and transfers in the higher judiciary.

Understanding the Collegium System.

1. The Collegium System is a judge-led mechanism for recommending appointments and transfers of judges to the Supreme Court and High Courts.
2. It emerged through judicial interpretation rather than through a constitutional provision or a separate parliamentary enactment.

Composition

1. Supreme Court Collegium: Chief Justice of India and the four senior-most judges of the Supreme Court.
2. High Court Collegium: Chief Justice of the concerned High Court and the two senior-most judges of that High Court.

The Collegium makes recommendations, while the formal appointment of judges takes place under the constitutional framework. The Supreme Court continues to publish Collegium resolutions relating to judicial appointments and transfers.

Constitutional Basis

The Constitution does not use the expression “Collegium”. Instead, it lays down a consultation-based framework for judicial appointments.

1. Article 124(2) provides for the appointment of Supreme Court judges by the President after consultation with judges of the Supreme Court and High Courts as considered necessary. The Chief Justice of India is consulted in appointments other than that of the CJI.
2. Article 217(1) provides for the appointment of High Court judges by the President after consultation with:

• the Chief Justice of India;
• the Governor of the concerned State; and
• the Chief Justice of the concerned High Court in the case of a judge other than the Chief Justice.

The interpretation of the term “consultation” became central to the evolution of the Collegium System.

Evolution Through the Judges Cases

1. First Judges Case — 1981: S.P. Gupta v. Union of India

• The Supreme Court interpreted “consultation” as an exchange of views rather than concurrence.
• This interpretation gave greater weight to the executive in judicial appointments.

2. Second Judges Case — 1993: Supreme Court Advocates-on-Record Association v. Union of India

• The Court reconsidered the earlier interpretation of consultation.
• It established judicial primacy in the process of appointments.
• It also provided for a Collegium comprising the CJI and two senior-most Supreme Court judges.

This judgment laid the foundation for the present Collegium mechanism.

3. Third Judges Case — 1998: The President sought the Supreme Court’s opinion on the scope and functioning of the Collegium.

The Court clarified that:

• consultation by the CJI must involve a plurality of judges;
• the CJI should consult the four senior-most Supreme Court judges; and
• the Collegium consequently became a five-member body comprising the CJI and four senior-most judges.

4. Fourth Judges Case — 2015: The 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act, 2014 sought to replace the Collegium System with the NJAC.

A five-judge Constitution Bench of the Supreme Court struck down the constitutional amendment and the NJAC framework. The judgment held that the arrangement was inconsistent with the independence of the judiciary, which forms part of the Constitution’s basic structure.

Consequently, the Collegium System continued to operate.

Working of the Collegium System

1. The Collegium recommends candidates for appointment or transfer within the higher judiciary.
2. The process also involves the Union Government. The Government can seek clarification or return a recommendation for reconsideration. The Supreme Court’s official records contain instances of both reconsideration and reiteration of Collegium recommendations.
3. The Collegium therefore functions as the recommendatory mechanism, while the formal appointment is made through the constitutional process.

Conclusion

1. The Collegium System is a judicially evolved mechanism rather than an expressly established constitutional body
2. The framework gives the judiciary a central role in recommending appointments while retaining the constitutionally prescribed role of the executive in the formal appointment process.

UPSC-Oriented FAQs

1. Why is the Collegium System not considered a constitutional body?

Because the Constitution does not expressly establish a Collegium. It provides for consultation in judicial appointments, while the present mechanism emerged through Supreme Court judgments interpreting those provisions.

2. Which constitutional expression became central to the Judges Cases?

The term “consultation” in Articles 124 and 217. Its interpretation determined the respective roles of the executive and judiciary in the appointment process.

3. What was the major institutional change brought by the Third Judges Case?

It clarified that consultation by the CJI must involve a plurality of senior judges, resulting in the present five-member Supreme Court Collegium.

4. Does the Collegium itself appoint judges?

No. The Collegium makes recommendations. The formal appointment is made by the President under the constitutional framework.

5. What did the NJAC seek to replace?

The National Judicial Appointments Commission was intended to replace the Collegium-based mechanism with a constitutionally and statutorily established body for recommending appointments and transfers of judges of the higher judiciary.

6. What was the outcome of the NJAC case?

The Supreme Court struck down the 99th Constitutional Amendment and the NJAC Act, 2014, following which the Collegium framework continued.

7. What is the significance of reiteration of a Collegium recommendation?

A recommendation may be returned for reconsideration during the appointment process. The Supreme Court’s official records distinguish between original recommendations, reconsiderations and reiterations, making reiteration an important stage in the process.