The Judicial Dilemma: Collegium the Ryder

Once again the debate has begun in the political and media corridors. The battle ( one shouldn’t say so ) between the two pillars of the Constitution of India for supremacy has come to the fore. The Union law Minister said some thing, the judiciary expressed displeasure over these remarks. The judiciary served a notice to the government seeking an explanation from it as to why the recommended names of the judges for appointments were not ratified. The learned Prime Minister kept quiet and sat on the files. It is natural that the Executive may not have approved these names. The recommendations of the Collegium were kept on hold and this must have shocked the ( arrogant ? ) judiciary.




This author 2015 discussed in this very News Bharati portal when the judiciary dismissed the National Judicial Commission Act,2015 in a .fraction of second as soon as the Hon’ble Justices assumed their chairs. The NJCA Act 2015 which had proposed a few changes in the constitution of the Collegium was struck down without any hearing. People realized the double standard of the behavioral pattern of the Judiciary when it refused to introspect and accept the people’s will to bring about a change toward reforms from within.

The principle of balance of power was violated.

Collegium: What is this system? Does it have a place in the Constitution of India?

What is the Supreme Court of India Collegium and How Does it Work?

The Collegium of the Supreme Court consists of 5 senior most Judges including the Chief Justice of India. They will consider the elevation of Chief Justices/Judges of High Court to Supreme Court, elevation of Judges of High Courts as Chief Justices and elevation of Judges. In case of difference of opinion, the majority view will prevail. Since Constitution mandates consultation with the Chief Justice of India is necessary for appointments to judiciary, the collegium model evolved.

What is the Collegium System?

It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.

It has no place in the Indian Constitution.

What does the Constitution actually prescribe?

Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

How and when did the other system evolve?

The collegium system has its genesis in a series of three judgments that are now clubbed together as the Three Judges Cases. The S P Gupta case (December 30, 1981) is called the First Judges Case. It declared that the primacy of the CJI's recommendation to the President can be refused for cogent reasons. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.


How did the judiciary come to get primacy?

On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case ” the Second Judges Case. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said justiciability primacy required that the CJI be given the primary role in such appointments. It overturned the S P Gupta judgment, saying the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word consultation would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.

How final was this?

Justice Verma’s majority judgment saw dissent within the bench itself on the individual role of the CJI. In a total of five judgments delivered in the Second Judges case, Justice Verma spoke for only himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. But Justice Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two judges (as mentioned in the ruling) and can consult any number of judges if he wants to, or none at all.

For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver.

What was done to deal with the Confusion?

In 1998, President K.R. Narayanan issued a presidential reference to the Supreme Court as to what the term consultation really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term consultation requires consultation with a number of judges in forming the CJIs opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegium.

Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of supremacy of the highest judiciary over the executive. This was the Third Judges Case.

What are the arguments against the collegium system?

Experts point to systemic errors such as:

ℜ∙ The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;

ℜ∙ A closed-door affair without a formal and transparent system;

ℜ∙ The limitation of the collegium field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.

What moves were taken to correct these?

The Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and recommended two solutions:

ℜ∙ To seek a reconsideration of the three judgments before the Supreme Court.
ℜ∙ A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.

What is the suggested alternative to the collegium?

A National Judicial Commission remains a proposal. The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the constitution of an NJC to be chaired by the CJI and with two of the senior-most judges of the Supreme Court as its members. The Union Law Minister would be a member along with an eminent citizen to be nominated by the President in consultation with the Prime Minister. The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary.

SC guidelines on Appointments

1. The term consultation with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute consultation.

2. The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior-most judges of the Supreme Court. As far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.

3. Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over. What has to be recorded is the positive reason for the recommendation.

4. The views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI along with his views to the extent set out in the body of this opinion.

5. The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations.

6. Recommendations by the CJI without [such compliance] are not binding upon the government.

7. The transfer of High Court judges is judicially reviewable only if the CJI took the decision without consulting the other four judges in the Supreme Court collegium, or if the views of the Chief Justices of both High Courts [involved in the transfer] are not obtained.

8. The CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment.

9. The CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge. The consultation need not be limited to colleagues who have occupied the office of a judge or Chief Justice of that particular High Court.

(Source: The above references are drawn from a note published by Aditya Dubey. I am grateful to it. )

It becomes quite clear that Article 124 in the Constitution of India is silent on the appointment of Judges, Moreover, it is abundantly clear that it is the Executive which has the Constitutionally derived power and authority to appoint judges.

The American case :

All Justices are nominated by the President, confirmed by the Senate, and hold their offices under life tenure. Since Justices do not have to run or campaign.
















In United States, federal judges are judges who serve on courts established under Article Three of the U.S. Constitution. They include the chief justice and the associate justices of the U.S. Supreme Court, the circuit judges of the U.S. Courts of Appeals, the district judges of the U.S. District Courts, and the judges of the U.S. Court of International Trade. These judges are often called "Article Three judges".
Unlike the president and vice president of the United States and U.S. senators and representatives, U.S. federal judges are not elected officials. They are nominated by the President and confirmed by the Senate, pursuant to the Appointments Clause of Article Two of the U.S. Constitution. The U.S. Constitution gives federal judges life tenure, and they hold their seats until they die, resign, or are removed from office by impeachment.
According to the Appointments Clause of Article Two of the U.S. Constitution, all federal judges, including the judges of the Supreme Court and inferior federal courts created by the Congress, shall be nominated by the president and confirmed by the Senate. The constitution does not provide any eligibility criteria — such as age, literacy, citizenship, legal education, legal/bar or any professional certification, and legal/judicial experience — for one to be appointed as a federal judge.
The British Case :
In England there is a Judicial Appointments Commission which selects
candidates for judicial offices in courts and tribunals in England and Wales.
The Judicial Appointments Commission is an independent commission that selects candidates for judicial office in courts and tribunals in England and Wales and for some tribunals whose jurisdiction extends to Scotland or Northern Ireland.
In Germany :
In Germany it is again the legislative wing which is responsible for the appointments of judges.
German judges are not subject to directives. They work entirely independently and their only obligation is to the law. This ensures that a judge can rule objectively and impartially. After all, in their function presiding over court proceedings, judges are the supreme legal authority and it is they who pass judgement.
Appointment of judges in Germany
The ministries of justice of the federal German states are responsible for appointing judges. This is not supposed to have any influence on the independence of judiciary from the legislative. However, the relationship between politics and the office of judge in Germany is not uncontroversial on an international stage. That said other countries have seen much more rigorous debate. In late June 2019, the European Court of Justice ruled that the compulsory retirement of judges by the state tied to the judicial reform in Poland was an infringement of European law. In Russia – where law graduates must have five years of professional experience before being qualified for the bench – judges are often felt to be politically biased, such that the trust the general public has in them is low. In Germany on the other hand the office of judge is among the most highly regarded professional categories.
Judge on probation at first, then judge for life
In Germany, newcomers start out their career as judges on probation, then after three to five years they become officials for life.
In France :
Claims over 10,000 Euros are heard by Regional courts Tribunaux de Grande Instance which have general jurisdiction and hear every dispute with an unspecified amount which does not fall within the jurisdiction of another court. Regional Courts also have exclusive power over cases involving divorce or proof of paternity. The judges and members of the Regional courts are professionals. Generally, Regional courts are set in the chief town of the Department. Regional courts also have a criminal division. Indeed, each regional court has a Criminal court which pronounces penalties from 6 months up to 10 years of imprisonment. But other penalties can be decided, such as fines, jour-amende (a fine that is followed by imprisonment if it is not paid in time) or work for the general interest/ Community service. Regional and Criminal courts generally rule with three judges. One of them may be a “lay judge”. However, they occasionally rule with a single judge. The first degree of jurisdiction has also specialist courts which are Juvenile courts, Labour courts, Commercial courts, social Security courts and Agricultural and Land tribunals. Except for the Juvenile courts, the judges of specialist courts are non professional and are elected or chosen with the respect of equal representation. Finally, The Assize Court, Cour d’assises, tries those accused of crimes (murder, rape, armed robbery, etc), attempted crimes, and those accused as accomplices. The Assize Court is not a permanent court, usually meeting every three months for about two weeks. This type of court is found in each department. The composition and modus operandi are unusual, as it is the only court consisting of professional judges (three) and a jury (nine citizens chosen by drawing lots). Certain crimes are tried by a special Assize Court without a jury, such as certain acts of terrorism or acts connected with drug dealing. The judgments of the Assize Court may be appealed.
The judges are appointed by the President of the Republic on a recommendation of the Higher Council of the Judiciary. They are divided into six different chambers: First Civil Chamber, Second Civil Chamber, Third Civil Chamber, Labour Chamber, Commercial Chamber, and Criminal Division. Each division is headed by a Presiding judge.
In Australia:
The current processes for the appointment of judges in Australia0
Section 72 of the Australian Constitution provides that the Governor-General in Council must appoint the judges of federal courts, the appointee being younger than 70 years of age. In practice this is done on the advice of the federal Cabinet. The relevant legislation adds that an appointee must have been a legal practitioner in Australia for not less than five years (see High Court of Australia Act 1979 (the HC Act) section 7; Federal Court of Australia Act 1976 subsection 6(2); and Federal Circuit and Family Court of Australia Act 2021 subsections 11(2) and 111(2)).
As noted by Justice Kiefel and Professor Saunders:
In practice the Commonwealth Attorney-General considers who might be a suitable appointment. The Attorney-General then writes to the Prime Minister (usually after asking the person whether he or she would accept appointment), seeking the approval of the Prime Minister and the Cabinet. If approved, the Attorney-General makes a recommendation to the Governor-General who considers the appointment through the Federal Executive Council process. (p. 6).
For appointments to the High Court, under section 6 of the HC Act, the Commonwealth Attorney-General is also required to consult with the Attorneys-General of the States.
As noted by the Australian Judicial Officers Association, the judicial appointments process in the states and territories involves judges being appointed by the Governor, having been selected by Cabinet on the advice of the Attorney-General. For example, in Queensland the Attorney-General makes a recommendation for the appointment of a judge or magistrate to the Cabinet and the Governor in Council, who by commission, may appoint a barrister or solicitor of the Supreme Court of at least five years standing as a judge (Constitution of Queensland 2001, section 59).
( Source : The above references are based on notes published elsewhere and whose authors are not known .However, I am grateful to all these )
In brief, the above references are excellent examples of the appointments of judges are made elsewhere in democracies in the world. All the countries which were mentioned above where constitutional democracies rule their respective societies, follow the principle of balance of powers either or separation of powers , but each example sticks to the rule of superiority of the legislative branch , at least has an edge over the other two pillars.
The Indian judiciary must introspect and must begin to learn or acquiesce to the fact that it has to function under a parliamentary democracy. The independence of judiciary does not entitle itself to create their own system of management including selection of the
The striking down of the NJCA Act 2015 by the Apex Court in 2015 was not only a strange thing to happen ,but it was also the narrow minded arrogance of the judiciary . No wonder, a common man in the street is perplexed as to how could this happen in a parliamentary democracy when a constitutional amendment Bill in other words, almost half of the Indian States in the Indian federal structure and both the Houses of the Parliament , which have passed the NJC Act,2015 unanimously was struck down unhesitatingly without paying any attention to the peoples’ will, only to save own interests’’. The earlier Indian Judiciary had a distinguished list of erudite judges and functioning within its own limits. In view of the above , it is imperative that the judiciary must allow the legislature to acquiesce the edge of the legislature .The Hon’ble Vice-President too in his address to the Rajya Sabha expressed the concern over the possibility of confrontationist policy of garage men.
In view of the narration made above, it is proposed that the law abiding parliamentarians need to think whether the few parliamentarians who in the high level academicians’ meets, could forward the following two suggestions in the realm of public domain :
One , whether parliamentary supremacy could be made unavoidable on the part of the judiciary.,.
Two, whether a new constitutional amendment Bill could be brought forward for extensive provisions could be made , for example militants and terrorists would not be made eligible for several legal and constitutional rights if the charges made by the State are of anti-national character ? Terrorists ,anti-national activists, raiders on cultural past of the Indian nation, etc. Is the Judiciary free from .national security duties. Moreover, whether some issues related to the national security , whether these could be kept outside the Judicial jurisdiction.
Think , ponder ..