Why in News?
Recently, the Supreme Court Collegium has recommended appointing Justice Munishwar Nath Bhandari as Chief Justice of Madras High Court.
Who heads the Collegium System?
The Collegium System of the Supreme Court is headed by the Chief Justice of India (CJI) and includes four other senior-most judges of the court. A High Court collegium is led by the incumbent Chief Justice and two other senior most judges of that court. The collegium system exclusively appoints judges of the higher judiciary, and the government’s role comes into play only after the collegium has decided on the names.
Evolution of Collegium system
- Since Constitution mandates consultation with the CJI is necessary for appointments to judiciary, the collegium model evolved.
- It has its genesis in a series of three judgments that is now clubbed together as the Three Judges Cases.
First Judges Case (1982):
- SC held that “consultation” of judges does not mean concurrence.
- Hence, it gave the primacy in appointment of judges to the Executive.
Second Judges Case (1993):
- Court reversed its earlier ruling by changing the meaning of “consultation” to concurrence.
- With this, the advice tendered by CJI became binding. However, the CJI would have to take into account the views of two of his senior most colleagues.
Third Judges Case (1998):
- Court gave primacy to the opinion of CJI in the matter of appointment of Judges.
- However, Chief Justice must consult four senior most judges of SC.
- Opinion of all members of the collegium should be in writing.
- Even if two judges in the collegium give an adverse opinion of a person for appointment as the SC judge, the CJI should not send the recommendation to the government.
Procedures for Judicial Appointments?
For Chief Justice of India:
- The President of India appoints the CJI and the other SC judges. As far as the CJI is concerned, the outgoing CJI recommends his successor. In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
For Supreme Court Judges:
- For other judges of the SC, 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.
For Chief Justice of High Courts:
- The policy dictates that Chief Justices of the High Court are appointed from outside the respective states. The Collegium takes the call on the elevation. High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges. The outgoing Chief Justice of the High Court concerned initiates the proposal in consultation with two senior-most colleagues.
- The Chief Minister receives the recommendation and advises the Governor to send the proposal to the Union Law Minister.
Appointment of CJI 1950-1973
- Until 1973, there existed a consensus between the Government of the day and the Chief Justice of India.
- The convention established that the senior-most judge of the Supreme Court would be appointed as the Chief Justice of India.
- In 1973, A.N.Ray was appointed as the Chief Justice of India. This violated the convention formed earlier since Justice A.N.Ray superseded three other Supreme Court judges senior to him.
- Again in 1977, another chief justice was appointed who superseded his seniors. This resulted in a clash between the Executive and the Judiciary.
Way Forward
- Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalise the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
- It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
FAQs related Collegium System for the Appointment of Judges
A1: The Collegium System of the Supreme Court is headed by the Chief Justice of India (CJI).
A2: Judges of the higher judiciary are appointed through the Collegium System. The Collegium comprises the CJI and the four other senior-most judges of the Supreme Court. The government’s role comes into play after the names are decided by the collegium.
A3: The Collegium System evolved from a series of three judgments collectively known as the Three Judges Cases. These cases determined the process of appointment of judges and the role of consultation with the CJI.
A4: The President appoints the Chief Justice of India based on the recommendation of the outgoing CJI. The Chief Justice of India (CJI) initiates the proposal for other Supreme Court judges, which involves consulting with the Collegium members and the senior-most judge from the relevant High Court. The appointment of Chief Justices of High Courts and High Court judges follows similar processes.
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