The Collegium System- The Controversy

The Collegium System- The Controversy

Collegium System has been in news in recent times for opacity in appointment of judges. Judiciary has insisted upon the transparency of system, while the matter comes to the 
transparency of judicial system- nothing has been done.  SC-Maheshwari-and-Khanna

The collegium has come under more controversy due to decisions taken in December 2018 and in January 2019.

On 12 December 2018, there were names of two judges which have been considered by the collegium, and they were- Justice Pradip Nanjo and Justice Menon. The recommendation was signed but was not forwarded.

However the decision was changed in the meeting held in January 2019.

In January, the new names recommended        were Dinesh Maheshwari and Justice Sanjiv Khanna.  The matter is about superseding the senior judges.

Former Chief Justices of India, a sitting Supreme Court judge, and the Bar Council of India have taken exception to the collegium’s unusual action of revisiting decisions made at an earlier meeting, and recommending the elevation to the apex court of Justice Dinesh Maheshwari and Justice Sanjiv Khanna, instead of two judges whose names had been considered earlier.

What is the collegium System?
The collegium system is a system to appoint judges in the apex court.  The collegium consists of the CJI and the next four the senior- most judges. It was concluded that the CJI could only recommend judges for appointment after consultation with the other four judges, and any candidate must be supported by most of the collegium. 

Once the collegium makes recommendation to the president, the president can either accept it or send it back to the collegium for reconsideration. If the collegium once again recommends that candidate for appointment, the president is bound by the recommendation.
The final position is thus that even though the formalities need to be performed by the president, the actual decision- making power when it comes to appointment of Supreme Court judges’ rests with the collegium.

The Birth of Collegium System

The 1993 and 1998 verdicts also gave birth to the collegium system, which comprised of the Chief Justice of India and the senior most four judges of the Court after the CJI.

This is not the first time that the collegium system has inflicted injustice

The Constitutional Procedure – Article 123, and 124(2)

Under the Article 123, the judges of the Supreme Court are to be appointed by the president of India. However, unlike the procedure followed in other countries, such as the USA, the appointment of Supreme Court judges in India happens with involvement of the judiciary.

Article 124 (2) says that the president shall appoint the judges after consultation with judges of the Supreme Court, for chief justice of India as the president may deem necessary for the purpose.

For the appointment of any judge of the Supreme Court apart from the CJI, the article also says that the chief justice of India must be consulted.

The issue

The problem is about the transparency in appointment of judges.
The criteria for appointment of judges was only seniority but the recent incident has changed that criteria too.

National Judicial Appointment Commission Act,(NJCA) 2014, meant to replace the collegium system of judges, was struck down on October 16, 2015, by a majority of 4 – 1.

Conclusion

Supersession, as a rule, must never be encouraged unless there are grave and compelling circumstances

Collegium System has been in news in recent times for opacity in appointment of judges. Judiciary has insisted upon the transparency of system, while the matter comes to the trasparency of judicial system- nothing has been done. 

What is collegium System
The collegium system is a system to appoint judges in the apex court.

The issue

The problem is about the transparency in appointment of judges.
The criteria  for appointment of judges was only seniority.

The collegium was expanded to include the CJI and the next four (up from two) senior- most judges. It was concluded that the CJI could only recommend judges for appointment after consultation with the other four judges, and any candidate must be supported by most of the collegium. 

Once the collegium makes recommendation to the president, the president can either accept it or send it back to the collegium for reconsideration. If the collegium once again recommends that candidate for appointment, the president is bound by the recommendation.
The final position is thus that even though the formalities need to be performed by the president, the actual decision- making power when it comes to appointment of supreme court judges’ rests with the collegium.
Under the Article 123, the judges of the Supreme Court are to be appointed by the president of India. However, unlike the procedure followed in other countries, such as the USA, the appointment of Supreme Court judges in India happens with involvement of the judiciary. Article 124 (2) says that the president shall appoint the judges.
After consultation with such of the judges of the Supreme Court for chief justice of India as the president may deem necessary for the purpose. For the appointment of any judge of the supreme court apart from the CJI, the article also says that the chief justice of India must be consulted.