Collegium System: Appointment of Judges, Problems and Way forward
The concept of the collegium system is unique to India. Collegium System as such is not mentioned anywhere in Indian constitution. The system was evolved by the Judiciary through various judgements.
The Judges of the Supreme Court and High Courts are appointed by the president under Articles 124(2) and 217 of the Constitution respectively.
The President appoints judges (including the Chief Justice) after consultation with such judges of the Supreme Court and of the High Courts as he deems necessary.
However, the word consultation has been interpreted as and evolved into collegium through First, Second and Third Judges cases.
Problems of Collegium System:
- Opaque: The decisions of the collegium are non-transparent.
- Selection procedure: No one knows about the selection criteria followed in appointing judges.
- Judges appoint themselves: There is a lack of judicial accountability. They are not answerable to anyone including the parliament and executive and the people. The Central government has criticised Judiciary saying it has created an empire within an empire by appointing themselves.
- Give-and-take culture: The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a gap between the haves and have-nots. Politicians and actors get instant relief from courts, the common man struggles for years for justice.
- Nepotism: The former Chief Justice of India, RM Lodha in relation to the appointment of judges in the High Court he commented that “Every Third HC Judge is Uncle”. It means within the high court relatives are practising law at the same place.
To replace the collegium system, the government passed the NJAC Act in 2014. But it was struck down by the Supreme Court as unconstitutional and void in the Fourth Judges Case, 2015.
The government should evolve a procedure of appointing higher judges upholding judicial independence. The following commissions have recommended as follows:
- National Commission to Review the Working of the Constitution (NCRWC) the effective participation of both the Executive and the Judiciary in the appointment of Judiciary.
- Second ARC recommended setting up of National Judicial Council to lay down the code of conduct for judges, including the subordinate judiciary. It also recommended that the appointment of judges to higher courts should be through the participation of the executive, legislature and the Chief Justice.
- The composition of NJC for appointing Supreme Court judges should include:
- The Vice President (as Chairperson of the Council)
- The Prime Minister
- The Chief Justice of India
- The Speaker of the Lok Sabha
- The Law Minister
- The Leader of the Opposition in the Lok Sabha
- The Leader of the Opposition in the Rajya Sabha
- For Appointing High Court Judges, the NJC should include:
- The Chief Minister of the concerned state
- The Chief Justice of the concerned High Court
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