The Collegium Standoff

Guest Post by Pallavi Mohan

Recently, the Central Government returned 20 names suggested by the Supreme Court collegium for appointment as High Court judges. The government expressed “strong reservations” about their suitability for the posts of High Court Judges. 

What is the collegium system?

As per Articles 124 and 217 of the Constitution of India, the President of India has to appoint judges of the Supreme Court and the High Courts after consultation with the Chief Justice of India (CJI) amongst other persons. The Supreme Court has interpreted the word “consultation” over the years in the First Judges Case (1981), Second Judges Case (1993) and Third Judges Case (1998), leading to the evolution of the collegium system. 

Presently, the collegium system is the method by which the President appoints judges to benches in the various High Courts and the Supreme Court of India. The Supreme Court collegium includes the Chief Justice of India and four other senior-most judges of the Supreme Court. The Supreme Court collegium also makes recommendations about the transfer of judges from one High Court to another. 

The collegium of a High Court, however, consists only of the Chief Justice of that High Court and the two other senior-most judges of the same High Court. A High Court’s collegium proposes names to appoint judges to that High Court only. The proposal is sent to the Supreme Court collegium for its consideration.  

How does the collegium system work?

To appoint a judge to the Supreme Court, the CJI consults with the collegium and with the CJI of the High Court from where the judge is proposed to be elevated, and accordingly makes a recommendation to the Government of India. The Government, after deliberation, can either accept the recommendation or return the same to the collegium, giving reasons for its non-acceptance. At this stage, the collegium can withdraw its recommendation or reiterate the recommendation made before. Conventionally, the Government is bound to accept any recommendation that the Collegium has reiterated. The name is then sent to the President of India for an appointment as a Supreme Court Judge.  

To designate a judge as the Chief Justice of a state’s High Court, a similar process as above is followed, except the governor of that state is also consulted before the President takes the final decision.  

To appoint a judge to a High Court or for transferring judges from one High Court to another, the Supreme Court collegium follows a similar process, except in the initial consultation process, the Chief Justice of the High Court/s in question is also consulted. Similarly, the governor/s of the states are consulted before the President takes the final decision. 

Has the collegium system ever been challenged?

In 2014, the 99th Constitutional Amendment was enacted by which a National Judicial Appointments Commission (NJAC) was made up to replace the collegium system. The CJI, 2 other senior-most judges of the Supreme Court, the Union Law minister, and 2 civil society experts chosen by a selection committee (comprising the CJI, the Prime Minister and the leader of opposition in Lok Sabha) were supposed to be a part of the NJAC. All members of the NJAC were to have veto power, so that if any 2 members of the council vetoed a name, that name could no longer be appointed. 

In 2015, the Supreme Court declared the 99th Constitutional Amendment and the NJAC Act of 2014 unconstitutional for interfering with the freedom of the judiciary. Since then, the collegium system continues to prevail for judicial appointments. 

Why is the recent return of the collegium’s recommendation by the Union Government problematic?

9 (or 10) of the 20 recommended names returned by the Union Government recently are those which had been reiterated by the Collegium. In the Second Judges Case (1993), the Supreme Court had observed that the word “consultation” in Articles 124 and 217 must be interpreted as “concurrence”, which meant that the recommendation of the CJI concerning the appointment of any judge would be binding on the President of India. Conventionally, any recommendation reiterated by the Collegium is accepted by the Government. However, this time they have returned reiterated recommendations, which has created this standoff.