As a measure to increase transparency in appointment and transfer of judges, the Supreme Court Collegium has decided that the information on how judges are appointed and transfer will be disclosed to the public. The SC Collegium is a panel consisting of the Chief Justice and 4 other senior most judges of the apex court who collectively decide on appointment and transfer of judges.
Appointment of High Court and Supreme Court judges has always been a subject of controversy as the process currently employed insinuates the independence of the Indian judiciary. The system has evolved through various judgments of the apex court, with no law to back up the amendments to the procedure. The primary laws that lay down the procedure of appointment of Supreme Court and High Court judges are Article 124(2) and 217(1) of the Indian Constitution.
Article 124(2) states that every judge of the Supreme Court of India will be appointed by the President by a warrant 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 hold office until the age of 65 years. The Chief Justice of India has to be consulted for the appointment of SC judges. Article 217(1) says that every judge of a High Court will 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 case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.
Under the collegium system, the names recommended by the High Court Collegium are informed to the government once they are approved by the SC Collegium. The role of the government starts only after the names have been finalised and is limited to get an inquiry conducted by the Intelligence Bureau in case a lawyer has been promoted to the position of a judge.
The government also has the power to raise objections and ask for clarification for the recommended names. However, this power is overruled as, if the Collegium recapitulates the recommended names, the government is bound to accept the names and appoint them as judges.
The much-debated collegium method was a result of 2 Supreme Court judgments and a follow-up President’s Reference to the court. The Supreme court in a 1981 case, held that the concept of CJI’s superiority was not found in the Constitution. The Constitution Bench also held that even if the President consults these authorities, his decision was not bound to be in concurrence with all of them. The judgment was favour of the executive.
The second case was a 1993 case in which a 9 judges bench overruled the 1981 decision and drew a special provision for appointment of a collegium system. In 1998, the Supreme Court laid down 9 guidelines that provided how this collegium is to function, giving it the power to appoint and transfer judges. The guidelines also gave the collegium, the power to finalise the names recommended by the High Court Collegium.
The collegium system repeatedly led to clashes between the judiciary and executive, because of which the government established the National Judicial Appointments Commission in 2014. However, the commission was struck down by the Supreme Court as an ‘unconstitutional’ body and allowed the government to finalise the Memorandum of Procedure in force.
The collegium system has been primarily criticised for the lack of transparency as it did not involve any mechanism or structure. There was no intimation to the public as to when the collegium meets and how the judges were appointed and transferred.
The existing system of appointments has also been called arbitrary as the collegium selects judges on its own evaluation of a person’s merits and the government has no option but to appoint the selected person. The executive has been given extremely limited powers or says in the appointment of judges and the public has been always in the dark about it.
The decision by the Collegium is seen as the onset of change and development in the way judicial appointments take place. Now, with the decision of the SC Collegium, there is some optimism with regards to a visible increase in clarity in the entire process.
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