Collegium System: Is Supreme Court above the law?

Recently the Supreme Court has ruled in favour of sub-classification in the reservation for SCs and STs in India. This decision is being looked upon as dividing the Dalits who have faced caste discrimination and continue to face the same in India. In many government jobs, people from upper class community continue hold higher positions while despite reservation since the constitution was drafted by Dr. BR Ambedkar came into being force, Dalit continues to face the discrimation even to this date. Many incidents have happened in the recent past and continue to be reported from across India showcasing that caste discrimination is more than economic. A recent incident that drew everyone’s ire was in Madhya Pradesh where an upper-class man was seen peeing on a Dalit man. After the video went viral the government came into action the culprit was arrested.

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Supreme Court of India still continues to be dominated by mostly judges belonging to upper castes and participation of Dalits and minorities remains low. The collegium system continues to appoint judges but it appears to be failing in making sure equal representation from all classes and genders when it comes to the appointment of judges in the Supreme Court. Even the whole appointment process of lower courts, high courts and Supreme Court face criticism from citizens for having a lack of transparency.

What exactly is a collegium system and how it appoints judged? Let us understand this and try to put this whole issue into a logical perspective.

The Collegium system in India is a method for the appointment and transfer of judges in the higher judiciary. This system is not explicitly mentioned in the Constitution of India but has evolved through judicial precedents and interpretations of constitutional provisions.

Key Features of the Collegium System:

1. Composition:

Supreme Court Collegium: Consists of the Chief Justice of India (CJI) and the four senior-most judges of the Supreme Court.

High Court Collegium: Comprises the Chief Justice of the High Court and the two senior-most judges of that High Court.

2. Role and Function:

The Collegium recommends appointments and transfers of judges to the Supreme Court and the High Courts.

Recommendations are sent to the Government of India, which can either accept or send them back for reconsideration. However, if the Collegium reiterates the recommendation, the government is bound to accept it.

Evolution of the Collegium System:

The Collegium system has its roots in several landmark judgments by the Supreme Court of India:

1. First Judges Case (1981):

The Supreme Court held that the word “consultation” used in Articles 124 and 217 of the Constitution did not mean “concurrence.” This meant that the Executive had primacy over the judiciary in judicial appointments.

2. Second Judges Case (1993):

This case overruled the First Judges Case and introduced the Collegium system. It held that “consultation” meant “concurrence” and gave primacy to the CJI in judicial appointments. The recommendation of the CJI was to be made in consultation with the two senior-most judges of the Supreme Court.

3. Third Judges Case (1998):

The President of India sought the Supreme Court’s opinion on certain questions relating to the Collegium system. In response, the Supreme Court expanded the Collegium to include the CJI and the four seniormost judges of the Supreme Court.

Appointment Process:

1. Supreme Court Judges:

The Collegium recommends the names of judges to be appointed to the Supreme Court. The recommendation is sent to the Law Ministry, which forwards it to the Prime Minister. The Prime Minister then advises the President to issue the warrant of appointment.

2. High Court Judges:

The Collegium of the concerned High Court recommends names for appointment to the High Court. These recommendations are reviewed by the Supreme Court Collegium. The approved names are then sent to the Law Ministry, the Prime Minister, and finally, the President for the issuance of the appointment warrant.

Transfer of Judges:

The Collegium also handles the transfer of judges from one High Court to another. The transfer is recommended by the CJI in consultation with the four senior-most judges of the Supreme Court.

Criticisms and Reforms:

The Collegium system has faced criticism on several grounds, including a lack of transparency, accountability, and the absence of a formal mechanism for judicial appointments. In response to these concerns, the Government of India introduced the National Judicial Appointments Commission (NJAC) through the 99th Constitutional Amendment Act, 2014. However, the Supreme Court struck down the NJAC Act and the 99th Amendment in 2015, terming them as unconstitutional, thereby reinstating the Collegium system.

The Collegium system continues to be the prevailing method for judicial appointments and transfers in India, despite ongoing debates and calls for reforms.