In Second Judges case, 1992, SC held that the Collegium’s (CJI and the four senior-most judges of the SC) recommendations to President for appointment of Judges to HC & SC are binding in nature.
Supreme Court has re-interpreted Article 124 and 214 of the Constitution & upheld Collegium system so as to secure Independence of Judiciary & the rule of law.
SC even struck down National Judicial Appointments Commission (NJAC) as it strongly disapproved of any role for the political executive in the appointment of judges, saying, “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.
Procedure for Various Judicial Appointments:
For CJI:
In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
President appoints CJI.
For SC Judges:
The proposal is initiated by the CJI.
The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
The consultees must record their opinions in writing and it should form part of the file.
The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President (recommendations of Collegium is binding)
Criticism of Collegium System
Opaqueness and a lack of transparency.
Scope for nepotism.
There are allegations that candidates lacking in essential attributes have been appointed routinely.
It is dilution of doctrine of checks & balances (for ex: In USA, President appoints Judges of Supreme Court)
Conclusion
There is a heavy burden on shoulders of Judges of Collegium. One can only hope and pray that they will discharge it in consonance with constitutional oath & dispel any criticism against it.
About National Judicial Appointments Commission (NJAC)
NJAC was envisaged as body to replace Collegium system to make appointments to higher Judiciary
It was established by 99th Constitutional Amendment Act, 2014 but was struck down by SC as unconstitutional
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)
