INTRODUCTION
The collegium system is responsible for appointing the judges of the Supreme Court of India and other High courts. This system evolved through three case laws. In the case of S.P. Gupta v Union of India[1], it was held that in the appointment of judges, the ultimate power is vested with the central government. However, in Judges Transfer Case II[2], SC held that in the matter of appointment of appointment of Supreme Court and High Court judges and transfer of HC judges, the Chief Justice of India should have the primacy. In re Presidential reference[3], SC held that “The expression ‘consultation with the Chief justice of India’ in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute ‘consultation’ within the meaning of the said Articles.” Hence in this way, the collegium system evolved in the Indian judiciary, but it has always been a debated system.
WHY THE COLLEGIUM SYSTEM IS UNDER SCRUTINY
UNCLE JUDGE SYNDROME
Kiran Rijiju said “Uncle-judge means if someone you know has become a judge, your path becomes clearer”[4]. This is one of the primary criticisms of the collegium system, and the dispute over judge appointments will persist as long as this system exists. The 230th law commission report showed concern and suggestions to eliminate this syndrome. Other competent judges feel their abilities and skills are being overlooked because this syndrome prevents them from entering the job and serving the Indian judiciary.
According to a 2015 estimate, over 50% of high court judges and 33% of Supreme Court justices were relatives of people in “higher echelons of judiciary,” which put obstacles in the way of first-generation lawyers[5].
LACK OF TRANSPARENCY
The public is unaware of the standards used to choose or promote judges and this lack of clearly stated standards for judicial appointments undermines credibility. Justice Kurian Joseph admitted that “the present collegium lacks transparency, accountability and objectivity[6].” This lack of openness makes the selection of judges ambiguous and susceptible to partiality. This lack of transparency in the collegium system further leads to high chances of nepotism and favouritism in the appointment of judges.
EvenDr.Ambedkar, the drafting committee chairman, was not in favour of the collegium system. He was of the view that giving Chief Justice the supremacy in the appointment of judges is a dangerous proposition[7]. His statement is quite evident in the fact that there are certain loopholes in the collegium system, and therefore, there is a need to reform this system.
Harish Salve, Senior Advocate Supreme Court harshly criticized the collegium system. He said “Show me one country in the world where judges appoint judges”[8]
Other than these loopholes lack of diversity in the Indian judiciary is also one of the reasons that collegium system is under scrutiny.
In my opinion appointment of judges should be fair. Competency, skills and capabilities should be the primary criteria of selection other than choosing the family members. The main purpose of the judiciary is to deliver justice without bias, but the irony is that concerns have been raised about bias in judicial appointments.
REFORMS IN COLLEGIUM SYSTEM
A new mechanism for selecting judges at the Supreme Court and High Court levels was proposed by the 99th Amendment to the Indian Constitution, which established the National Judicial Appointment Commission (NJAC). Article 124 A was added in the Constitution of India after this amendment.
This article provided for the constitution of a commission known as the National Judicial Appointment Commission consisting of the Chief Justice of India as chairperson, two other senior judges next to the Chief Justice, the Union Minister in charge of law and justice.
The nomination of two eminent persons consisting of Prime Minister, the Chief Justice of India and the leader of opposition in the House of People. It was provided in the Article the out of two eminent persons one shall be nominated from amongst the SC, ST, Other Backward Classes, Minorities or Women was step in removing any discrimination in appointment and gave opportunity to the marginalized classes[9].
But the NJAC was repealed, and the amendment was declared unconstitutional in the Fourth Judge Case[10] by a 4:1 ratio. The Hon. Justice Khehar stated that “the organic development of civil society, has not yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it insulated and independent, from the other organs of governance.[11]” This act was struck down because it gave veto power to any two members of the commission hence affecting the independence of the judiciary in the appointment. After this, the original collegium system was revived.
Two fascinating nuggets of information regarding the operation of the collegium system of the Supreme Court of India have surfaced in recent days. The collegium will now interview those who are suggested for promotion to the high court as judges. Additionally, those whose relatives have served or are now serving as high court or supreme court judges will not be considered for selection by the panel[12]. This will lead to a fair selection of judges because interview plays a crucial role in assessing a candidate’s attitude, objectivity, and capacity to perform judicial duties. It also aids in evaluating their capacity for patience, critical thinking, and effective communication.
Moreover, these changes will give chance to first-generation lawyers. It will end the practice of favouritism and nepotism. Since those who already have their relatives and family members holding judicial posts will not be considered for selection for panels.
CONCLUSION
The best course of action, in my opinion, is to interview the candidate since this will contribute to the appointment of qualified judges to the judiciary. The introduction of specific qualifying tests can improve the selection process’ efficacy. A video recording of the selection should be posted on the official websites of Supreme Court and High Courts of India, to increase transparency.
While the current proposals are commendable, I believe that excluding applicants who already have family members in judicial positions will prevent them from demonstrating their abilities. They ought to be given the same opportunity as others, and they ought to be chosen similarly.
A few verifiable criteria, including complaints, case disposition rate, and length of service in both the current and prior positions, should be taken into consideration when choosing candidates[13].
Although neither the NJAC nor the collegium system received full approval, several adjustments to the NJAC’s judicial appointment process can be made to preserve the judiciary’s independence.
Author(s) Name: Jasleen Kaur Chahal (Chandigarh Group Of Colleges)
References:
[1] S.P. Gupta v Union of India and Anr (1982) 2 SCR 365
[2] Supreme Court Advocates on Record v Union of India (1993) 4 SCC 441
[3] In Re: Under Article 143(1) of The Indian Constitution v Unknown (1999) AIR 1 SC
[4] ‘Uncle Judge syndrome will remain till Collegium system is there: Kiran Rijiju’ India Today (New Delhi, 22 April 2023) para 4 <Uncle Judge syndrome will remain till Collegium system is there: Kiren Rijiju – India Today> accessed 13 February 2025
[5]‘The Collegium Conundrum’ (Drishti IAS, 07 January 2025) < https://www.drishtiias.com/daily-updates/daily-news-editorials/ The Collegium Conundrum> accessed 13 February 2025
[6] Vijay Hansaria ‘Why appointing Supreme Court. High Court Judges through closed- door collegiums is flawed’ India Today (New Delhi, 07 February 2022) para 8 <Why appointing Supreme Court, high court judges through closed-door collegiums is flawed | OPINION – India Today> accessed 11 February 2025
[7] Constituent Assembly Deb 24 May 1949, vol 8
[8] ‘Show Me A Nation Where Judges Appoint Judges: Harish Salve On Collegium System At Republic Summit’ (Republic World, 7 March 2024) < https://youtu.be/vXd5EgnwANc?si=foYeIeCZ3KsZK96a> accessed 15 February 2025
[9] Constitution of India, art 124A
[10] Supreme Court Advocate-On-Records v Union Of India WP No 13/2015
[11] Ibid
[12]‘The Collegium and changes- it may still be early days’ The Hindu (07 January 2025) para 1 < https://www.thehindu.com/opinion/lead/ The Collegium and changes — it may still be early days – The Hindu> accessed 14 February 2025
[13] Vahibaya Khali, ‘COMPARATIVE ANALYSIS OF JUDICIAL APPOINTMENTS WITH REFERENCE TO USA, AUSTRALIA AND INDIA’ (2022) 10 International Journal of Advanced Research < http://dx.doi.org/10.21474/IJAR01/15588> accessed 14 February 2025
