COLLEGIUM SYSTEM - POLITY

COLLEGIUM SYSTEM - POLITY

News: Collegium system is perfect, says ex-CJI Lalit

What's in the news?

●       The collegium system of appointment of judges to the Supreme Court and High Courts is “perfect”, former Chief Justice of India (CJI) U.U. Lalit said it.

●       Justice Lalit, who retired on November 8 as the 49th CJI, said the process of appointment should not go on indefinitely, adding that this has deprived the courts of much-needed talent.

Appointment of judges:

What is collegium?

●       The Supreme Court collegium is a five-member body, which is headed by the incumbent Chief Justice of India (CJI) and comprises the four other senior most judges of the court at that time.

●       A High Court collegium is led by the incumbent Chief Justice and four other senior most judges of that court.

●       By its very nature, the composition of the collegium keeps changing, and its members serve only for the time they occupy their positions of seniority on the Bench before they retire.

Role of Collegium:

●       It is the way by which judges of the Supreme Court and High Courts are appointed and transferred.

●       The collegium system is not rooted in the Constitution or a specific law promulgated by parliament, rather it has evolved through judgments of the Supreme Court.

●       Judges of the higher judiciary are appointed only through the collegium system, and the Government has a role only after names have been decided by the collegium.

●       Names that are recommended for appointment by a High Court collegium reaches the Government only after approval by the CJI and the Supreme Court collegium.

Constitutional Provisions:

●       Article 124(2) - “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”

●       Article 217 - “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.”

●       The appointments are made by the President, who is required to hold consultations with “such of the judges of the Supreme Court and of the High Courts” as he may think is needed.

●       But the Constitution does not lay down any process for making these appointments.

Advantages of Collegium System:

●       The collegium system increases secrecy. Ruma Pal, a former Judge of the Supreme Court of India, stated that this system is one of the best kept secrets in the country. It is kept secret within the four walls of the body for proper and effective functioning of the institution that makes the system opaque.

●       The collegium system makes the judiciary independent from politics and populism. It separates the judiciary from the influence of executive and legislative. With the Government’s influence, the judiciary can work without any fear and any sort of favor. This ensures the regulation of the doctrine of separation of power.

●       There are many cases in which the judges of the Supreme Court were transferred because of political influences. So the power given to the executive organ for transferring the judges would lead to decrease the independence of judiciary as well as it will stop the judiciary organ from working effectively. A fair functioning collegium system would be best as it ensures the independence and allows the judge to perform their duty without any fear or without any interference and influence.

●       The executive organ is not specialist or does not have the knowledge regarding the requirements of the Judge as comparative to the CJI. The Collegium system ensures that the deserving one is sitting in the position of the Judge in the Supreme Court.

Criticisms of Collegium System:

●       This system does not provide any guidelines in selecting the candidates for the judge position of the Supreme Court because of which it leads to wide scope for nepotism and favoritism. Because of which the deserving candidates are unable to be appointed as the Judge.

●       The collegium system doesn’t have any criteria for testing the candidate as well as they don’t investigate any background of the candidates and they are not accountable to any administrative body that may lead to wrong choice of the candidate while overlooking the right candidate. Already there are many cases pending in the Court, they are having limited time. The power given to them for the appointment would lead to a burden on the Judiciary.

●       The principle of check and balance is violated in this system. In India, three organs work partially independently but they keep check and balance and control on the excessive powers of any organ. As Judiciary is dependent on the executive for the appointment of the Judges with the consultation of CJI and the senior most Judges of SC; but this system gives the immense power to Judiciary to appoint Judges, so the check on the excessive powers would not be ensured and misuse of powers can be done.

●       This system leads to non-transparency of the judicial system, which is very harmful for the regulation of law and order in the country.

●       Opaqueness - Too much secrecy and independence makes the system opaque in its functioning.

●       There is no public knowledge of how and when a collegium meets, and how it takes its decisions. There are no official minutes of collegium proceedings.

The collegium system of appointment and transfer of judges of the higher judiciary has been debated for long, and sometimes blamed for tussles between the judiciary and the executive, and the slow pace of judicial appointments.