COLLEGIUM

SYSTEM
CG 2 PRESENTATION
PRADYUMN BISHT
HOW ARE JUDGES APPOINTED
TO THE SC AND HC?
 Article 124 reads:
 (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until
Parliament by law prescribes a larger number, of not more than seven other Judges.
 (2) 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:
Provided further that –
(a) A Judge may, by writing under his hand addressed to the President, resign his office;
(b) A judge may be removed from his office in the manner provided in clause (4).
ARTICLE 217
 Appointment and conditions of the office of a Judge of a High Court
(1) 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, and shall hold office, in the case of an additional or acting Judge, as provided in Article
224, and in any other case,
EARLIER SCENARIO
 Nowhere in these two articles has the collegium system been mentioned. The Apex Court has
devised its own method of appointment of judges over a period of time, decades after India’s
independence. When the Indian Constitution came into being, the tradition was that the senior
most judge of the Supreme Court was to be appointed as the Chief justice of India. And as far
as the other judges of the Apex Court and the High Courts are concerned, the President used to
appoint them in consultation with the Chief Justice of India and such other judges of the
Supreme Court and the High Courts as he thinned fit.
EVENTS THAT LED TO BIRTH
OF COLLEGIUM
 KESHAVANANDA BHARTI CASE
 The genesis of the Judges Cases begins in 1973 when, by a narrow 7-6 margin, the SC
delivered its historic verdict in Kesavananda Bharati v. the State of Kerala. This famous case
established the “basic structure doctrine”, which purports that the Constitution has a basic
structure of principles and values that cannot be altered by any Act of the legislature of the
executive.
 What followed was a series of unprecedented events: on 26 April 1973, one of the judges who
dissented in the Kesavananda Bharati case, Justice Ajit Nath Ray, was promoted to the
position of CJI. But Ray was not the senior-most judge: his elevation was made possible by
superseding three more senior judges – three judges who had ruled in favour of the basic
structure doctrine that the government so despised. This was a blatant attack on judicial
independence by the executive, and in retrospect has been rightly regarded as a black day for
Indian democracy
CONTD.
 Fast-forward to after the days of the Emergency, and the SC is now faced with a crisis
surrounding both its independence and the securing of its independence in the long-term. The
central question was: who has the final say in the appointment of judges, the government or
the Supreme Court?
BIRTH OF COLLEGIUM
 First Judges Case: S P Gupta Vs. Union of India And Ors. AIR 1982 SC 149. on 30th of
December, 1981.
 In the First Judges Case (1981), the apex court held (4-3) that in the appointment of a judge of
the Supreme Court or the High Court, the word “consultation” in Article 124(2) and in Article
217(1) of the Constitution does not mean “concurrence”.
 The Court said that the word “may” in the Article only makes it optional to the Central
Government as to which of the judges it should consult. It does not make it optional for the
Central Government to consult or not. Hence the Central Government must consult but
ultimately the power of appointment should rest on the Central Government. The case also
suggested that there should be a collegium of judges for appointment and transfer of judges.
This this case upheld thePrimacy of Executive in appointment and transfer of judges.
SECOND JUDGES CASE
 Supreme Court Advocates on Record Association Vs. Union of India (1993) 4 SCC 441. Oct
6. 1993.
 In the Second Judges Case (1993), the court (7-2) overruled the First Judges Case, holding that in the
event of conflict between the President and the CJI with regard to appointments of Judges, it was the
Chief Justice of India whose opinion would not only have primacy, but would be determinative in the
matter.
  By overruling the first judges case, the second judges case decided that, the CJI should make proposal
and appointment, but it is not only him but there should be a collegium consisting of him and two
other senior most judges of the Supreme Court for making proposal and appointment of judges.
  The 9 judges bench with the majority of 7:2 ruled that the Articles 124 and 217 of the Constitution in
this regard had to be interpreted with “purposive and contextual” construction method. So this finally
set up a collegium of judges for appointment of judges as previously only suggested by the first judges
case.
SECOND JUDGES CASE
 While the court already made it clear that the CJI would have the final say and that the
President’s recommendation was non-binding, the court also expanded that appointments
would be decided by the CJI and
 the  two most-senior judges after the CJI in the SC when it comes to appointing SC judges;
 the two most senior judges of the respective HC when it comes to appointing judges to that
particular HC.
DIDN’T GO AS EXPECTED
  The three members of the collegium would not see each other when it came to making
proposal and many a times the CJI did not accept the recommendation of his two other senior
most colleagues of the collegium
THIRD JUDGE CASE
 In Re Special Reference Case AIR 1999 SC 1
 The primacy of the CJI continued and this made the executive file a reference under Article
143 of the Constitution in the name of the President for advisory opinion of the Supreme
Court. However, the executive didn’t question the correctness of collegiate opinion nor did it
question the judgement in the Second Judges Case! The reference, thus, became futile with not
much difference from the Second Judges case. The only thing that this reference improved
from the Second Judges case was to increase the number of the judges in the collegium. The
collegium was now to consist of the CJI and the four other senior most judges of the Supreme
Court. This reference case came to be known as “the Third Judges Case”.
AFTER EFFECTS OF
COLLEGIUM
 There is a perception that the Collegium system, which finds no mention in the Constitution
and is a mechanism put in place by the SC itself, personifies the democratic deficit that
plagues the Indian judiciary. The members of the Collegium, whilst signifying the fierce
independence of the judiciary, also exemplify the cabal-like behind-the-door dealings of the
judicial branch that lacks accountability and public scrutiny.
 As such, the lack of transparency has ignited fears of nepotism and elevation of judges based
on personal relationships and past favours instead of merit or seniority
CONTD.
 The most pronounced attempt at reforming the Collegium System was probably the National
Judicial Appointments Commission (NJAC). The NJAC was a body that would have been
comprised of the CJI, two senior judges, the Law Minister and “two eminent personalities”
appointed by the Prime Minister, Leader of Opposition and CJI. It was passed by Parliament in
2014 as the 99th Constitutional Amendment Act.
 However, ten months after it received the President’s assent, the NJAC was struck down as
unconstitutional by the SC by a 4-1 majority (in what is sometimes referred to as the Fourth
Judges Case). The SC branded the Commission as an infringement on judicial independence
and a violation of the separation of powers. Therefore, the Collegium System was preserved
and, as of October 2018, continues to be in place.