Has collegium system of judges' appointment outlived its utility? This question has been bothering not just the top echelons of judiciary in India but the executive too. Though the ‘collegium system’ which appoints judges has been in place for quite some time now, there have been murmurs of dissatisfaction over the practice in different quarters. The collegium system — which is followed in the appointment of judges to the supreme court and the high courts has recently been challenged in the supreme court. The petitioner, Rajasthan-based Suraz India Trust wants the court to declare the system ‘ultra vires’ and ‘unconstitutional’ because the constitution does not mention it anywhere and it has been brought into existence through the judgements of the supreme court. The bench, which heard the matter, referred it to the Chief Justice of India for ‘appropriate direction’ as the petition raised ‘complicated legal issues.’ On its part, the government has said that the matter required ‘reconsideration.’
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
1. The term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute consultation.
• The collegium comprises the Prime Minister, the CJI and Leader of Opposition of the Lok Sabha. The eminent members will retain membership for a three year period and are not eligible for re nomination.
• The Secretary to the Government of India in the Department of Justice shall be the convener of the Commission.
• Those include (i) recommending persons for appointment as Chief Justice of India; judges of the Supreme Court, Chief Justices of High Courts and other judges of High Courts; (ii) recommending of transfer of Chief Justices of High Courts and the judges of High Courts, from one High Court to any other High Court; iii) ensuring that the person recommended is of ability, integrity and standing in the legal profession.
• The procedure for recommendation with respect to appointment of High Court Judges includes eliciting views of the Governor, Chief Minister and Chief Justice of High Court of the concerned state, in writing. This shall be in accordance with procedure specified by regulations made by the Commission.
• Intimation of existing vacancies shall be made within a period of three months from the date of coming into force of this Act.
• In the case of vacancy due to the completion of term, reference shall be made two months prior to the date of occurrence of vacancy.
• In the case of vacancy due to the death, resignation, reference shall be made within a period of two months from the date of occurrence of vacancy.
Procedure for short listing of candidates
• Process for selection shall be initiated by the Convener, by inviting recommendations from the Chief Justices of High Courts, the Central Government and the State Governments, for candidates fulfilling eligibility criteria.
• The Commission may make regulations to specify the procedure for short listing of candidates for considering their appointment as Judges to the High Court and Supreme Court.
THE COLLEGIUM SYSTEM vs. THE JUDICIAL APPOINTMENTS COMMISSION
The collegium system is an undemocratic system under which the prerogative lies with the Judiciary to make the appointments to such a powerful institution. This system is a perfect example of legislation by the Judiciary. Such a system is not followed in any democratic state and is unique to our legal system. It has completely annihilated the Constitution scheme of checks and balances by reducing the role of the Executive to the minimum.
The JAC, Bill definitely provides a better alternative but a lot of debate and discussion is required to be conducted before it turns into an Act as it concerns a matter of immense importance. There is no clarity as to who will be the ‘two eminent’ persons who are proposed to be the members of the JAC and on what considerations they will be selected. The UPA government’s hurry to pass the bill has raised serious aspersions on the intention of the government. The approach of the government should be more assiduous and responsible. This is not a bill of ordinary importance and concerns the complete overhaul of the process of judicial appointments. It should be passes only after detailed deliberations and debates. The non transparency of the current collegium system should not be made a pretext for giving the Executive sweeping powers in the matter of judicial appointments.