18-May-2024-Editorial

2 DISTRICT JUDGES QUESTION COLLEGIUM PICKS, SUPREME COURT NOTICE TO HIMACHAL HC 

Two senior-most district judges from Himachal Pradesh have recently approached the Supreme Court, claiming that their merit and seniority were disregarded by the Himachal Pradesh High Court Collegium during the judge selection process. 

What is the Collegium System? 

• The Collegium System involves the appointment and elevation of judges/lawyers to the Supreme Court and the transfer of judges within High Courts and the Apex Court. 
• This system is overseen by a forum comprising the Chief Justice of India (CJI) and the four senior-most judges of the Supreme Court. 
• Notably, the Collegium System is not mentioned in the original Constitution of India or in its subsequent amendments. 
• The recommendations made by the Collegium are binding on the Central Government if the Collegium reiterates the names after initial suggestions. 

Evolution of the Collegium System 

First Judges Case (1982): 

• The Court ruled that “consultation” does not mean “concurrence,” implying an exchange of views rather than a binding decision. 

Second Judges Case (1993): 

• The Court reversed its earlier stance, interpreting “consultation” as “concurrence,” thereby giving the judiciary a decisive role in appointments. 

Third Judges Case (1998): 

• The Court further refined the consultation process, stating it requires the input of a plurality of judges, not just the CJI alone. 
• The CJI must consult a Collegium of the four senior-most judges of the Supreme Court. If two judges oppose a recommendation, it should not be sent to the government. 

Working of the Collegium System 

• The Collegium recommends the names of lawyers or judges to the Central Government, which can also propose names to the Collegium. 
• If the Collegium reaffirms its recommendation after initial government review, the government must approve the names. However, there is no set time limit for the government’s response, causing delays in appointments. 
• The 99th Constitutional Amendment Act, 2014, sought to replace the Collegium System with the National Judicial Appointments Commission (NJAC), but the Supreme Court declared the NJAC unconstitutional, citing the potential for political interference and its threat to judicial independence. 

Issues Involved in Appointment 

• Cumbersome Process: Delays in the appointment process lead to increased case backlogs in courts. 
• Lack of Transparency: The selection criteria are not publicly disclosed, leading to perceptions of nepotism. The Collegium’s deliberations are also not made public. 
• Instances of Politicisation: Allegations exist that political executives may hinder the appointments or transfers of judges based on unfavorable judgments, undermining judicial independence. 
• Improper Representation: Some social sections are overrepresented, while vulnerable sections may lack any representation. 

Appointment Procedure of High Court Judges 

Article 217 of the Constitution: 

• States that High Court judges are appointed by the President in consultation with the CJI and the Governor of the state. 
• In the case of judges other than the Chief Justice, the consultation process also involves the Chief Justice of the High Court. 

Consultation Process: 

• Recommendations are made by a Collegium consisting of the CJI and two senior-most Supreme Court judges. 
• Proposals are initiated by the Chief Justice of the High Court, in consultation with two senior-most High Court judges. 
• Recommendations are then sent to the Chief Minister, who advises the Governor to forward the proposal to the Union Law Minister. 

Transfer Procedure of High Court Judges 

Article 222 of the Constitution: 

• Provides for the transfer of a judge (including Chief Justices) from one High Court to another, initiated by the CJI, whose opinion is decisive. 
• The consent of the judge is not required for transfers. 
• Transfers are made in the public interest to promote better administration of justice. 

Conclusion 

While the Collegium System aims to maintain judicial independence, issues such as lack of transparency, politicisation, and delays in the appointment process remain critical concerns.  

Ensuring a balanced approach that respects both the merit and seniority of judges while maintaining judicial independence is essential for the effective functioning of India’s judiciary.