This Article has been written by RASHI SHARMA from AJEENKYA D.Y PATIL UNIVERSITY , PUNE.
WHAT IS THE COLLEGIUM SYSTEM?
A Collegium System is a system under the Judiciary of India which deals with the arrangement, advancement, and move of the judges of the Supreme Court of India, by a discussion that comprises the Chief justice of India and four of the senior-most judges of the supreme court.
There is no such notice of the collegium which has been given in the Constitution of India or some other revisions of the constitution. In any case, the constitution discusses the arrangement of judges under Article 124 (2) which states ” that the Judges of the Supreme Court are selected by the President after counsel with a particular number of the Judges of the Supreme Court and of the High Courts in the States as the President may consider significant for the reason.” and under Article 217 which states ” that the Judge of a High Court will be designated by the President meeting with the Chief Justice of India, the Governor of the State, and, on account of the arrangement of a Judge other than the Chief Justice, the Chief Justice of the High Court.”
THE EVOLUTION OF COLLEGIUM SYSTEM
The collegium system finally came into effect after three major cases that are considered to be a landmark in the evolution of the collegium.
1. S.P Gupta vs. Union of India & Ors. (1981) – Also known as the First Judges Case of 1981, this case was a seven-judge constitution bench that held that the judge can be transferred against his will. It started with an Article 124 (2) which envisaged a just consultation and said that the consultation shall be complete, meaning that it should neither be more or less which can signify that the Chief Justice shall be provided with all the factual inputs to enable him to form an opinion. All the communications made to him shall be in writing. The reason behind this judgment was that the ultimate authority cannot be vested with the Judiciary as the Judiciary is not accountable to anyone thereby giving supremacy to the Executive over the judiciary
2. The Supreme Court Advocates on Record Association(SCARA) vs. Union of India (1993) – Also known as the Second Judges Case of 1993, this case was a nine-judge Constitution bench which overruled the decision of S.P Gupta and appointed a specific procedure called the ” collegium system” for the appointment and transfer of judges in the higher judiciary. This case observed the primacy to the Chief Justice Of India, in the matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments.
3. Re: Under Article 143(1) Of The Constitution of India vs Unknown (1998) – Also Known as the Third Judges Case of 1998, this case was a nine-judge constitution bench that talked about the re-appointment of the Judges. Under this judgment, the Collegium System was widened. Under this judgment, the Supreme Court had impacted and widened the scope of judicial primacy in the appointment of judges. The judgment laid that the opinion of the Chief Justice was important, but he would concern 4 of the senior-most judges of the Supreme Court, thereby forming a collegium. The collegium system was not structurally rigid but functional. It was also said that for the appointment of the High Court judges, the Chief Justice of that High Court along with 2 of the senior-most judges of that High Court shall be consulted..
LIMITATIONS OF THE COLLEGIUM SYSTEM
When Judges appoint Judges, the essence of democracy is endangered.
Had the Constitution makers found the merits in this system, they would have expressed it in the Constitution. But the collegium is a concept that has evolved from the judiciary to the judiciary itself.
Law Commission’s Report iterates that the Collegium System is an organization inflicted with rampant nepotism and personal patronage. That favor is done in exchange for a favor and inevitably, a judge’s son ends up becoming a judge
RECENT LANDMARK JUDGEMENTS ADDRESSING THE CONCERN
To counter these condemnations, the Supreme Court has maintained a Delhi High Court Judgment in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, wherein the CJI’s office has proclaimed a public authority under the RTI act. The CJI’s office has likewise been supposed to be equivalent to the workplace of the Supreme Court. The Supreme Court said that the Transparency doesn’t sabotage Judicial Independence, as Judicial freedom and responsibility go inseparably. At present , the worries and restrictions regarding untouchable legal executive has shifted to a degree that public interest tests and security tests must be embraced in giving the subtleties of the ‘contributions’, as described by Justice Khanna.
While the data may be unveiled after plenty of variables, this judgment places the Supreme Court office in the public eye.
This special situation of law is just found in India whereas in UK, known as the mother of majority rules system the Judicial Appointments Commission (JAC) , an Independent Commission takes care of the interaction of choice of contender for legal office in Courts and Tribunal, comprising the sum of 15 individuals, out of which 3 individuals will be from Judges Community, and the remaining 12 individuals (counting Chairmen) are designated through open rivalry. Other than JAC there is another authority known as “Legal Appointments Conduct and ombudsman” to investigate the Complaints concerning arrangements by JAC and Judicial discipline or Conduct.
In South Africa, which follows the steps of individuals such as Mahatma Gandhi and Nelson Mandela, in which the President assigns the Judges in the wake of counseling the “Legal Services Commission” comprising 23 individuals including Judges, Advocates, Legal Professors, individuals from Parliament, and famous people designated by the president as its individuals. The individuals from the panels will keep during the joy of the parliament.
In Italy which is one of the old majestic states, the Federal Constitutional Court is their highest court, which comprises a sum of 15 individuals. Out of the 15 judges, 1/third will be designated by the President of the nation, 1/third by the parliament in a joint meeting, and 1/third by highest case customary and regulatory courts. Every one of the legal authorities in other conspicuous nations appears to be encompassed by the Executive’s impedance. In India, it appears to be that the issue with the arrangement of judges is simply the current judges.
The parliament of India felt that the collegium system needed responsibility and straightforwardness, as such through the 99th amendment to the Indian constitution brought NJAC (National legal arrangements commission) in the year August 2014.
Mr. Justice M.N. Venkatachaliah, who headed the National Commission to audit the working of the Constitution, had likewise suggested a five-Member National Judicial Commission, whereby, a wide consultative interaction was tried to be presented, in the determination and arrangement of Judges.
Justice V.R. Krishna Ayer while composing advances to “Story of a Chief Justice” communicated the collegium neglected to choose the best-appointed authority’s accessible, comparable view communicated by Justice Rumal Paul, Justice S.S. Lodhi, and Sir Nariman. Justice Varma who headed the seat of 9 judges which propounded the prevalently realized Second adjudicator Case likewise changed his view and communicated that the time has come to audit the Collegium System.
NJAC Case – Supreme Court Advocates on Records Association v. Association of India
The previously mentioned NJAC’s constitutionality came into question and held that the NJAC was unconstitutional. The major part was that the issue of arrangement has a direct nexus with the autonomy of the legal executive conceived in Article 50 and all through the constitutional history and working of the Republic of India.
The autonomy of the legal executive and division of forces were held to be the two significant reasons by J. Kehar with regards to why the NJAC was struck down. J. Kurian Joseph agreed and held the view that ‘things ought not to be increased except if important’ – Entia Non-Sunt Multiplicanda Sine Necessitate.
The disagreeing perspective on J. Chelameswar doesn’t consider the 99th Constitutional Amendment Act as violative of the constitution, as it doesn’t contribute total forces to the president to name or move judges. Moreover, the NJAC guarantees that no disgraceful up-and-comer will be designated up to 2 individuals from the commission to see that the applicant is bumbling. He also added that the presence of the association law doesn’t in any capacity subvert the authenticity and the freedom of the legal executive, however his rejection would seriously sabotage the say of a popularity-based government picked by individuals and would be ruinous to the fundamental element of governing rules..
Regardless of whether the circumstance works after the RTI – CJI judgment, yet is apparent that there is no responsibility in the arrangement of judges. Individuals who run the arrangements are dispossessed of appropriate obligations and responsibilities. The legal executive has not just fizzled in the execution of the collegium framework yet isn’t even blameable for it. The Union Government, then again, is by all accounts running point at present and the obstruction is back. The Indian Constitution is enduring and anticipating quick consideration