Issues in the Collegium’s Functioning

“There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands''

Table of Contents

Relevance for UPSC

GS 2: Judiciary, Judicial Review

Why is the issue?

A meeting of the Supreme Court Collegium, comprising the Chief Justice of India (CJI), and four senior-most judges was called for September 30 but did not take place, and was subsequently “closed without there being any further deliberation”.
What prevented further deliberations was the fact that the Union Law Minister, by a letter dated October 7, requested Chief Justice U.U. Lalit to nominate his successor, as the latter’s tenure ends on November 8, 2022. The postponement of the meeting and its subsequent closure has invited attention to the manner in which the Collegium functions.

What is the work of the Collegium?

The Collegium system, one in which a group of the senior-most judges make appointments to the higher judiciary, has been in practice for nearly three decades.
Its importance lies in the fact that its opinion has primacy in the matter of appointments to the high courts and the Supreme Court, as well as transfers.
Its legal basis is found in a series of three judgments — usually referred to as the ‘Judges Cases’ — concerning the higher judiciary.
Its manner of functioning has been laid down in the form of a ‘Memorandum of Procedure’.
The Constitution says a Supreme Court judge is appointed by the President in consultation with the Chief Justice of India.
In the ‘First Judges Case’, the court held that the consultation with the CJI should be “full and effective”.
The Second Judges case introduced the collegium system in 1993. It ruled that the CJI would have to consult a collegium of his two senior-most judges in the apex court on judicial appointments.
The ‘Third Judges Case’ case in 1998, which was a Presidential reference, expanded the collegium to its present composition of the CJI and four of his senior-most judges.

How does the SC Collegium discharge its functions?

The Collegium’s functioning has been criticised for being opaque.
Its resolutions and recommendations are hosted on the Supreme Court’s website, giving relevant information about its decisions.
However, the nature of the deliberations and whether there are any internal differences of opinion on the suitability of a particular candidate are unknown.
It functions mainly through the system of adopting resolutions and sending them to the Union Law Ministry for further action. If a proposal for appointment of a judge is returned for reconsideration, the Collegium may either drop it or reiterate it. When the Collegium reiterates its decision after reconsideration, it is binding on the government.

Observations of the Chief Justice of India Justice P.N. Bhagwati in the famous judges’ case

“There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands rather than be vested in a single individual. That is perhaps the reason why the Constitution-makers introduced the requirement in clause (2) of Article 124 that one or more judges out of the judges of the Supreme Court and of the High Courts should be consulted in making appointment of a Supreme Court Judge. But even with this provision, we do not think that the safeguard is adequate because it is left to the Central government to select any one or more of the Judges of the Supreme Court and of the High Courts for the purpose of consultation. We would rather suggest that there must be a collegium to make a recommendation to the President in regard to appointment of a Supreme Court or High Court Judge. The recommending authority should be more broad-based and there should be consultation with wider interests.”

What are the issues from recent developments?

Three questions may have arisen from the development. One is whether there ought to be a prescribed mode of decision-making, that is, through personal deliberations or by circulation or by adopting both means as per convenience.
The second is whether all members of the Collegium give their opinions in writing, or whether they convey reservations, if any, orally.
A related question that arises is whether all decisions ought to be unanimous and consensual.
There is a view that a recommendation by majority, with one or two expressing reservations, may give a good reason for the executive to reject the recommendation or seek reconsideration.
Also, the need for the Collegium not to hold any deliberations in the last month of a Chief Justice’s tenure is something to be debated.
Given that the CJI is appointed by seniority, many of them have only a short tenure running into a few months. This convention may slow down decision-making.

Way Forward

The decision to recommend names for appointment is the collective decision of the collegium. The Chief Justice is no more than the first among equals.
In that view of the matter, the proposition that the collegium should not meet and transact its work when less than a month remains for the CJI to retire is not logical or correct, legally or morally.
This argument, if it is valid, should apply in the case of every member of the collegium; that would make the system completely unworkable.
There is also no rationale for the one month period, even assuming that some such period should be there when no decisions regarding appointments are taken.

Conclusion

The judiciary is itself largely to blame for the present condition because it has itself violated some of the laws and conventions of the judicial office. We need a code of conduct for judges. And it is a document which they alone can draft.