Baba’s Explainer – The workings of the Supreme Court collegium

  • IASbaba
  • August 8, 2022
  • 0
Indian Polity & Constitution
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  • GS-2: Structure, organization and functioning of the Judiciary

Context: The Chief Justice of India (CJI) N.V. Ramana’s tenure is drawing to an end in a few days. The Ramana Collegium has been particularly successful. Meeting frequently and working quickly, they took the perennial problem of judicial vacancies by its horns and turned it around.

  • The collegium, as a united front, was able to recommend numerous judicial appointments and scripted history by getting nine Supreme Court judges appointed in one go.
  • Of the nine, Justice B.V. Nagarathna, is in line to be the first woman CJI in 2027.
How are the judges of Supreme Court appointed?
  • Article 124(2) of the Indian Constitution provides that the Judges of the SC are appointed by the President after consultation with such a number of the Judges of the SC and of the High Courts in the States as the President may deem necessary for the purpose.
  • Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President 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 Supreme Court has offered diverse meanings of the phrase “consultation”
  • For appointment of Chief Justice of India (CJI): In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s. President appoints CJI.
    • The Union Law Minister would, at an “appropriate time”, seek the recommendation of the outgoing CJI on his successor.
    • Once the CJI recommends, the Law Minister forwards the communication to the Prime Minister who would advise the President on the appointment.
  • In the case of appointment of a judge other than Chief justice, consultation with the Chief Justice is obligatory. The interpretation of the word consultation has evolved over the years which can be summarised as follows:
First Judges Case, 1982 ·       Supreme Court held that consultation does not mean concurrence and it only implies exchange of views
Second Judges case, 1993


·       SC reversed its earlier ruling and changed the meaning of the word consultation to concurrence.

·       Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court.

·       But, the Chief Justice would tender his advice on the matter after consulting two of his senior most colleagues (this was considered as Collegium)

·       The collegium can veto the government if the names are sent back by the latter for reconsideration.

·       The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.

·       The opinions of each member of the Collegium and other judges consulted should be made in writing and form part of the file on the candidate sent to the government.

·       If the CJI had consulted non-judges, he should make a memorandum containing the substance of consultation, which would also be part of the file. After the receipt of the Collegium recommendation, the Law Minister would forward it to the Prime Minister, who would advise the President in the matter of appointment.

Third Judges case, 1998


·       SC opined that the consultation process to be adopted by the CJI requires ‘consultation of plurality judges’.

·       The sole opinion of CJI does not constitute the consultation process.

·       He should consult a collegium of four senior most judges of the SC and even if two judges give an adverse opinion, he should not send the recommendation to the government.

·       The court held that the recommendation made by the CJI without complying with the norms and requirements of the consultation process are not binding on the government.

·       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.

·       The government’s role 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.

National Judicial Appointments Commission


·       The 99th Constitutional Amendment Act of 2014 and the NJAC Act of 2014 have replaced the collegium system of appointing judges to SC & HCs with a new body called the National Judicial Appointments Commission (NJAC)

NJAC was to consist of the following members:

·       Chief Justice of India (Chairperson, ex officio)

·       Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio

·       Union Minister of Law – ex-officio

·       Two eminent persons (to be nominated by a committee consisting of CJI, PM and the Leader of Opposition or leader of single largest opposition party in the Lok Sabha)

·        However, 99th CAA and NJAC Act as unconstitutional and void on the grounds that it violated Independence of Judiciary

·       Consequently, the earlier collegium system became operative again.

However, over time, the collegium system has attracted criticisms

What are the concerns with Collegium system?
  • Collegium system finds no mention in the actual text of the Constitution.
  • Long-standing criticism about the collegium’s operation remain unaddressed i.e its opacity and a lack of independent scrutiny of its decisions.
    • There is lack of transparency as to why five Chief Justices are now being transferred to different courts.
    • For nearly two years, despite vacancies on the Bench, the collegium made no recommendations for appointments to the Supreme Court.
  • Our constitutional scheme envisages no power of administrative superintendence in the Supreme Court over the High Courts. But when transfers are made routine, when the process of appointing Chief Justices to High Courts is shrouded in secrecy, a de facto system of oversight on High Courts is put in place.
  • The procedure to be followed by the collegium system is contained in a “Memorandum of Procedure” (MoP). However, there is no actual guidance on how judges are to be selected.
  • Supreme Court struck down National Judicial Appointments Commission (NJAC), created by 99th Constitutional Amendment Act.  This was done on the grounds that judicial primacy in making appointments and transfers was an essential feature of the Constitution.
    • NJAC would have been responsible for the recruitment, appointment and transfer of Judges of Higher Judiciary.
    • JNAC was to be comprised of members from the judiciary, the executive, and the lay-public.
  • But when the Court struck down the NJAC in 2015, it also promised to reform the existing system. Six years down the line those promises have been all but forgotten.
  • A new “Memorandum of Procedure” (MoP), for instance, has not moved forward.
    • The considerations that must go into the procedure for selecting judges is left unexplained.
    • The words “merit” and “diversity” are mentioned without any corresponding debates on what they mean.
Has the increase in judicial appointments lowered pendency in the Supreme Court?
  • The increase in the number of judges has not guaranteed lower pendency of cases in the apex court over the years.
  • The number of pending cases has risen to 71,411 as on August 1, 2022 from a little over 55,000 in 2017. This is despite the fact that the sanctioned judicial strength of the court was increased to 34 judges in August 2019.
  • A steady rise in arrears regardless of the periodic increase in judicial strength has been a constant phenomenon since 1950.
  • In 1950, the Supreme Court had eight judges and a pendency of 100-plus cases. A decade later, in 1960, the judges’ strength in the Supreme Court grew to 14 while pendency rose to 3,247.
  • In 1978, the number of apex court judges was 18 and pendency had crossed the 14,000-mark. In 1986, there were 26 judges in the Supreme Court while pendency increased to 27,881.
  • In 2009, the number of judges in the Supreme Court reached 31 though pendency went beyond 50,000.
  • In 2014, the number of judges remained 31 but pendency had burgeoned to over 64,000.
  • In 2020 and 2021, the pandemic added to the pendency rate in the apex court. The year 2020 ended with a backlog of 64,426 cases and 2021 with 69,855 cases.
  • Justice D.Y. Chandrachud is in line as per the seniority norm to be the 50th CJI Chief Justice in November. The problems of arrears and vacancies in the apex court may likely fall on his shoulders in a year of churn.

Mains Practice Question – Does collegium system clash with doctrine of checks and balances? Comment.

Note: Write answers to this question in the comment section.

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