- The Supreme Court Collegium is a five-member body, which is headed by the incumbent CJI and comprises the four other senior judges of the Supreme Court. The basic function of the collegium is to select judges for appointments in SC and HC.
- The government can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is not left with any other option but to appoint them as judges of the Supreme Court or High Court.
- Articles 124 (2) and 217 of the constitution deal with the appointment of judges of the Supreme Court and High Court.
- Such appointments are made by the president after consultation with such judges as he thinks are needed. However, the Constitution does not lay any process for making these appointments.
From Consultation to Collegium
The Supreme Court has given different interpretations of the word ‘consultation’.
- In the First Judges case (1982), the Court held that consultation does not mean concurrence and it only implies exchange of views.
- But, in the Second Judges case (1993); the Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence. Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court. But the Chief Justice would tender his advice on the matter after consulting two of his senior colleagues.
- Similarly, in the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief Justice of India requires ‘consultation of plurality judges’. The sole opinion of the Chief Justice of India does not constitute the consultation process. He should consult a collegium of four senior judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government. The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process is not binding on the government.
- To overcome the collegium system government came up with NJAC. The NJAC was brought as the 99th constitutional amendment, in 2014.
- However, in 2015, the Supreme Court declared both the 99th Constitutional Amendment as well as the NJAC Act as unconstitutional and void. Consequently, the earlier collegium system became operative again. This verdict was delivered by the Supreme Court in the Fourth Judges case (2015). The court opined that the new system (i.e., NJAC) would affect the independence of the judiciary which is part of the basic structure of the constitution.
What was NJAC?
NJAC was designed to appoint judges to the Supreme Court and High Court. The commission had a blend of judicial, executive, legislature, and civil society.
Composition of NJAC:
- The Chief Justice of India as the ex officio Chairperson
- Two senior-most Supreme Court Judges as ex officio members
- The Union Minister of Law and Justice as ex officio member
- Two eminent persons from civil society (to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India, and the Leader of Opposition in the Lok Sabha; one of the eminent persons to be nominated from SC/ST/OBC/minorities or women)
Difference between Collegium System and NJAC:
- The Chief Justice of India and Chief Justices of the high courts were to be recommended by the NJAC based on seniority while SC and HC judges were to be recommended based on ability, merit, and “other criteria specified in the regulations”.
- The Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it.
Also, check out: ATTORNEY GENERAL OF INDIA
