Legal InformationAdvocate Tanwar

1. Introduction

The Collegium System governs the appointment and transfer of judges to the Supreme Court and High Courts in India. Unlike many democracies, it is a judicially evolved practice rather than being enshrined in the Constitution. Proponents argue it safeguards judicial independence; critics claim it suffers from opacity, nepotism, and lack of accountability.

2. Meaning & Concept

  • Collegium: A body of sitting Supreme Court judges—the Chief Justice of India (CJI) together with his four senior-most colleagues—responsible for recommending judicial appointments and transfers.
  • High Court Collegium: Headed by the Chief Justice of that High Court along with two senior-most HC judges, initiating recommendations for elevation and transfers, which are forwarded to the Supreme Court Collegium.
    This system relies entirely on judicial consensus without a statutory or constitutional basis

3. Historical & Legal Background

3.1 First Judges Case (S. P. Gupta v. Union of India, 1981)

  • Ruled that “consultation” by the President under Articles 124 and 217 indicates exchange of views, not concurrence.
  • This granted the executive primacy in appointments, weakening judicial independence for over a decade

3.2 Second Judges Case (SCAORA v. Union of India, 1993)

  • Reframed “consultation” to mean “concurrence”.
  • Introduced the Collegium headed by the CJI and his two senior colleagues.
  • Elevated judicial primacy in appointments

3.3 Third Judges Case (In re Presidential Reference, 1998)

  • Expanded the supervisory body to CJI + four senior-most judges for SC appointments, and CJI + two seniors for High Courts.
  • Established that President must follow Collegium recommendations; reiterated judicial autonomy

3.4 NJAC and Fourth Judges Case (2015)

  • The 99ᵗʰ Amendment and NJAC Act (2014) aimed to involve executive and eminent persons in appointments.
  • Supreme Court struck down NJAC/Ninety-Ninth Amendment as unconstitutional, citing violation of the “basic structure” and breaching judicial independence

4. Constitutional Provisions

  • Article 124(2): President appoints SC judges “in consultation” with the CJI and other judges
  • Article 217: Similar provision for High Court judges, with Governor and High Court CJ’s consultation
  • Article 222: Presidential power to transfer HC judges after consulting the CJI
    Although the word “Collegium” does not appear in these Articles, colloquial usage has institutionalized the system.

5. Structure & Functioning

5.1 Supreme Court Collegium

  • Composition: CJI + four senior-most judges
  • Functions:
    1. Recommends appointments of SC and HC judges
    2. Advises on transfers of HC judges
    3. Transfers HC Chief Justices

5.2 High Court Collegium

  • Composition: HC Chief Justice + two senior-most judges
  • Functions: Recommends HC appointments to Supreme Court Collegium

5.3 Role of Executive

  • Acts on Collegium recommendations; may request reconsideration with “cogent reasons.”
  • If the Collegium reiterates its recommendation, the executive must comply—no further rejections permitted.

6. Features of the System

  • Judicial Primacy: Empowers judiciary to self-select judges, creating a firewall from political influence
  • Non-Statutory Evolution: Developed through judicial rulings, not legislation
  • Layered Consultation: Internal consultations are written and deliberative, not ad hoc
  • Binding Recommendations: Executive’s power is limited after Collegium reiteration

7. Criticisms

  1. Opacity: No clear criteria; proceedings held in private; lack of transparency .
  2. Nepotism & Elite Capture: Alleged “uncle judge syndrome”; dominance of legal families; low representation of women and scheduled castes/tribes
  3. Accountability Deficit: No third-party verification; no public or parliamentary oversight .
  4. Structural Gridlock: Delays in judicial vacancies due to confidential processes and lack of timelines
  5. Executive–Judiciary Tension: Repeated conflict exemplified by NJAC failure, reflecting constitutional friction

8. Attempts at Reform

  • NJAC (2014): Proposed inclusion of Law Minister and eminent citizens, for greater transparency; struck down in 2015 via Fourth Judges Case
  • Memorandum of Procedure (MoP): Detailed guidelines drafted in 1999 and revised after 2015 to promote transparency.
  • Internal Reforms: In 2015, the Supreme Court invited inputs on criteria, secretariat, grievance mechanisms, and representation; some Collegium resolutions are now published online .

9. Judicial Opinion on Reforms

  • SC in the Fourth Judges Case recognized the need to improve transparency, accountability, diversity, and include a permanent secretariat, but insisted executive involvement under NJAC infringed independence .
  • A lone dissenting judge, Justice Chelameswar, argued NJAC would have addressed nepotism and executive overreach

10. Recommendations for Improvement

  1. Strengthening MoP: Define objective criteria (integrity, professional excellence), timelines, and procedure.
  2. Judicial Secretariat: Establish an administrative office to manage nominations, background verifications, and track applications.
  3. Transparency Policy: Publish Collegium policies, minutes, and appointment rationales, while safeguarding judicial accountability.
  4. Diversity Mandate: Encourage representation of women, SC/ST/OBC within the judicial bench.
  5. Grievance & Vetting Mechanisms: Introduce third-party inputs and a complaints-resolution mechanism within MoP.
  6. Executive–Judiciary Cooperation: Reconcile judicial independence with accountability via an enhanced role for the executive in scrutiny—but maintain Collegium primacy.

11. Conclusion

The Collegium System remains a distinctive Indian innovation guarding judicial independence. However, its non-transparent nature, nepotism concerns, and executive–judiciary tensions pose significant governance concerns. Reforming the system with a balance—enhancing transparency, diversity, and robust accountability while preserving the spirit of judicial autonomy—is crucial for fortifying public confidence and strengthening India’s constitutional democracy.

CONTRIBUTED BY : ANSHU (INTERN)