Author Name:   Nehavermadme

This article is written on demerits of collegium system of appointment of judges in Indian judiciary.

Collegium System: Darkness Unveiled

The collegium system of appointment and transfer of judges of higher courts is followed in India. This system is widely referred as judge-selecting-judge. The system came into force after the Three Judges Case in 1993 by Supreme Court and not through any act or regulation by Parliament. Before 1993, the judges had been appointed by the recommendation of union cabinet.

The article 124(1) talks about the appointment of judges by President with the consultation of Chief Justice India thus the Constitution of India does not lay down any specific system of appointment. The appointment of Supreme Court judges is done by the collegium headed by Chief Justice of India and of four judges with the assent of President. The collegium of appointment of High Court Judges is headed by Chief Justice and consist of four other judges. After approval by Chief Justice of India it goes to the President for assent. This system of appointment and transfer of Nation’s Constitutional Courts has both the pros and cons.

The advantage of having the system is only it protects independence of judiciary from the intervention of other organs of Government .Moreover, the legislature do not possess the legal knowledge consequently unable to appraise the lawyers and their competency to become judge. The system stimulates the appointment by experienced judge who have expertise in law. But it includes prejudice by judge, they dissipate the power and recommend their own well-wisher and sometime incapable lawyers becomes judge of higher courts, who has neither legal brain nor competency. Suraz India Trust ,an NGO questioned the validity of collegium system through petition which was dismissed on the basis of inadequate Locus Standi.

In 2013, the Parliament introduced a bill that amends the provisions of article 124(2) and 217(1) and recognized the NJAC on whose recommendation the President would appoint the judge. On 5th Sept 2013, the Rajya Sabha passed the bill and the assent of president was also obtained. Later on it was struck down by Supreme Court as it undermines the independence of judiciary. Justice Jasti Chamleswar also criticized the system as it is most opaque and majority gangs up to shoot down genuine objectives against undesirable candidates being selected to be judges of higher courts.

There is no reason, no opinion is recorded, only two people decide the names and come back to the meeting and ask for a yes or no. The outside world is not aware about the happenings inside the collegium. Justice Verma had delivered the judgement of the Second Judges’ Case gave primacy to judiciary or Chief Justice Of India in the appointment of judges and ruled that the executive cannot have an equal say in the matter.

After many years justice Verma commented that the judgment needs to be reviewed and clarified that what he meant was somewhat different. Even justice Kurien also admitted that the present collegium system lacks transparency, accountability and objectivity .in fact he said that the collegium system needs to be improved requiring a ‘Glansnot’ and ‘Perestoika’. This system bolsters the debilitated trend where in fuliginous manner which also affects the decision taken by such incompetent judges consequently violates the principle of natural justice.

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