Collegium System Flashcards
Why in News?
Principle of Seniority and CJI Chandrachud’s ‘5+1’ collegium.
- AN unusual collegium of 6 judges instead of 5.
Union Minister for Law and Justice Kiren Rijiju on Saturday (September 17) said the collegium system of appointments to the higher judiciary needs to be reconsidered in view of the concerns about the process.
Consequence of statements and the past verdict
An attempt by the government to bring a law that would give the executive a strong say in the appointments was struck down by the Supreme Court several years ago. Thereafter, in 2019, a nine-judge Bench of the court dismissed a plea for a review of its 1993 verdict in the so-called ‘Second Judges Case’, which is widely understood to be instrumental in establishing the existing “collegium system” of appointing judges in the higher judiciary.
What is the Collegium System?
- 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; it has evolved through judgments of the Supreme Court.
2.
SC and HC 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 seniormost judges of the court at that time. A High Court collegium is led by the incumbent Chief Justice and two other seniormost 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.
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.
The role of the government in this entire process is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court. The government can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
What does the Constitution say on the appointment of judges in the higher judiciary?
- Articles 124(2) and 217 of the Constitution deal with the appointment of judges to the Supreme Court and High Courts. 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.
- ARTICLES
Article 124(2) says: “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 says: “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.”
How did the collegium system of appointments evolve?
The collegium system evolved out of a series of judgments of the Supreme Court that are called the “Judges Cases”. The collegium came into being through the interpretations of the relevant provisions of the Constitution that the Supreme Court made in these Judges Cases.
1. First-Judges case
2 Second-Judges case
3. Third-Judges case
First-Judges case
In ‘SP Gupta Vs Union of India’, 1981, the Supreme Court by a majority judgment held that the concept of primacy of the CJI was not really rooted in the Constitution. It held that the proposal for appointment to a High Court could emanate from any of the constitutional functionaries mentioned in Article 217, and not necessarily from the Chief Justice of the High Court.
The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 did not mean “concurrence” – therefore, although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them.
The judgment in the First Judges Case tilted the balance of power in appointments of judges of High Courts in favour of the executive. This situation prevailed for the next 12 years.
Second-Judges case
In ‘The Supreme Court Advocates-on-Record Association Vs Union of India’, 1993, a nine-judge Constitution Bench overturned the decision in ‘SP Gupta’, and devised a specific procedure called the ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary. It was this judgment of the Supreme Court that was sought to be reviewed in the petition filed by the National Lawyers’ Campaign for Judicial Transparency and Reforms, and which was turned down by the court in October 2019 .
The judgment in the Second Judges Case underlined that the top court must act in “protecting the integrity and guarding the independence of the judiciary”. The majority verdict in the case accorded primacy to the CJI in matters of appointment and transfers, and ruled that the term “consultation” used in the Constitution would not diminish the primary role of the CJI in judicial appointments.
Ushering in the collegium system, the verdict in the Second Judges Case said that the recommendation should be made by the CJI in consultation with his two seniormost colleagues, and that such recommendation should normally be given effect to by the executive.
It added that although the executive could ask the collegium to reconsider the matter if it had an objection to the name recommended, if, on reconsideration, the collegium reiterated the recommendation, the executive was bound to make the appointment.
Third-Judges case
In 1998, then President KR Narayanan issued a Presidential Reference to the Supreme Court under Article 143 of the Constitution (advisory jurisdiction) over the meaning of the term “consultation”. The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.
In response, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments and transfers. This has come to be the existing form of the collegium, and has been prevalent ever since.
In its opinion, the Supreme Court laid down that the recommendation should be made by the CJI and his four seniormost colleagues — instead of two, as laid down by the verdict in the Second Judges Case. It also held that Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted.
It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.
INTELLIGENCE BUREAU
The Intelligence Bureau (IB) is India’s domestic internal security and counter-intelligence agency under Ministry of Home Affairs. It was founded in 1887 as Central Special Branch, and is reputed to be the oldest such organization in the world.
Until 1968, it handled both domestic and foreign intelligence after which Research and Analysis Wing was formed specifically for foreign intelligence following that IB was primarily assigned the role of domestic intelligence and internal security. Tapan Deka, the current director of the IB, took over from Arvind Kumar on 24 June 2022.
Formed- 1887
Headquarters- New Delhi, Delhi, India
Minister responsible- Amit Shah, Minister of Home Affairs
Agency executive- Tapan Deka, Director
Parent agency- Ministry of Home Affairs
Formation of SC and HC
- The Promulgation of regulation act of 1773 established the SC judicature at Calcutta as a court of record with full power and authority.
- Indian High Courts Act, 1861. High courts in calcutta, madras and bombay
- Govt. of India act, 1935 estd. Federal court of India (appeal made in Privy council of London) located in the present Parliament building in 1937.
Judicial Provisions
- Chapter-6 and part 5 deals with the union Judiciary.
- Article 124 and 147 is the constitution of Supreme court.
- Article 124(1) states that there shall be a supreme court in India
Jurisdictions
Three Jurisdictions:
1. Original
2. Apellate
3. Advisory and some others are Review Jurisdiction- article 137, and Special Leave petition- article 136( discretionary power to the supreme court).
- Original- article 131
- Apellate- articles 132, 133 and 134.
- Advisory article 143.
Complete Justice
Article 142 “provide(s) a unique power to the Supreme Court, to do “complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case.
Article 142(1) states that “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe”.
Special Reference 1 of 1998
raised in 1998 by then President KR. Narayanan in July 1998 under his constitutional powers given under article 143.
