Ans. Judicial appointments in India has always been a contentious issue in India. It is further highlighted by the recently released report of the Department of Justice, while 60 lakh cases remained pending at various High Courts, 30% of the HC judge seats remain vacant. There has been a long drawn confrontational battle between the Government and the Judiciary over the procedural powers of appointment of Judges in India. The Collegium System is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court (SC), and not by an Act of Parliament or by a provision of the Constitution. The Supreme Court Collegium is headed by the Chief Justice of India and comprises 4 other senior-most judges of the SC.

Evolution of the System:

First Judges Case (1981): It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.” The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
Second Judges Case (1993): SC introduced the Collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
Third Judges Case (1998): SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
Fourth Judges Case (2015): The Supreme Court declared the 99th Amendment Act and the NJAC Act as unconstitutional. Supreme Court struck down the National Judicial Appointments Commission (NJAC) and reaffirmed the collegium system. SC held that NJAC impinged on the independence of the Judiciary and undermined the basic structure of the Constitution.

Benefits of collegium system:

1. Checks Interference of the Executive- The collegium system isolates Judiciary from the influence of Executive and Legislature. It ensures independence of the Judiciary. For ex- The interference of the Executive in Judicial appointments during Emergency when several settled conventions were disrupted like appointment of senior-most Judge as the Chief Justice.
2. Executive as Main Litigant- The Government is the main litigant in Courts accounting for ~50% of the cases. Prominence to the Executive in appointments may impact impartiality of the Judiciary in adjudication.
3. Lack of Expertise- Executive may lack the expertise regarding requirements of a Judge. The Judiciary may be the best ‘judge’ in this regard.
4. Safeguarding the Constitution- Excessive Government control over Judiciary can make the Judges vulnerable to external influence. Judicial Independence is absolutely essential to safeguard the Constitution and underlying principles like Right to Life, Right to Privacy etc.

Concerns Associated with the collegium system:

Lack of constitutional Status- The Collegium is not prescribed in the Constitution. Article 124 mentions consultation, which the SC interpreted as ‘concurrence’ in Second Judges Case (1993). For Instance- During the hearing against the NJAC, the then SC Bar President had argued that the Constituent Assembly had considered a proposal for making Judges’ appointment ‘in concurrence’ with the CJI but had eventually rejected it.
Transparency issues- There is no official procedure for selection or any written manual for functioning of the Collegium. The parameters considered for selection (or rejection) are not available in the public domain.
Accountability issues- The selections of Judges by the Judges is considered undemocratic. Judges are not accountable to the people or any other organ of the State (Legislature or Executive). It can add an element of arbitrariness in functioning.
Allegations of Nepotism- Critics of the system argue that collegium system has led to ‘Uncle Judges’ wherein near relatives, kith and kin of sitting Judges are appointed to the higher judiciary leading to nepotism.
Subjectivity and bias in appointments- The absence of transparency, accountability and external checks creates space for subjectivity and individual bias in appointments. For ex- Ignoring the principle of seniority in some cases.
Lack of Global Equivalent- India is perhaps the only country where Judges appoint other Judges without involvement of any other organ of the State.

The impact over independence, transperancy, and accountability of judiciary as follows:

Exclusion of Executive: The complete exclusion of the executive from the judicial appointment process created a system where a few judges appoint the rest in complete secrecy.
Biased’ Collegium: Successive collegiums not putting forth names disliked by the Government.
Lack of Accountability: They are not accountable to any administrative body that may lead to the wrong choice of the candidate while overlooking the right candidate.
No Appointment from ‘distinguished’ Jurist: There have been no appointments from the category of distinguished jurists (under Article 124).
Preserve of Judges: Appointments to the top court seem to be the preserve of judges from the High Courts with a handful of appointments from the Bar.
Close-Door Mechanism: Critics have pointed out that this system does not involve any official secretariat. It is seen as a closed-door affair with no public knowledge of how and when a collegium meets, and how it takes its decisions which gives rise to opaqueness. Also, there are no official minutes of collegium proceedings.
Opaqueness: The collegium meetings for the appointments of the judges are held n close doors, which shows the lack of transparency.
Chances of Favouritism and Nepotism: The collegium system does not provide any specific criteria for testing the candidate for the post of CJI because of which it leads to wide scope for nepotism and favoritism.
Non-Transparency: It gives rise to non-transparency of the judicial system, which is very harmful for the regulation of law and order in the country.
No Seat for Non-Judge: There is no seat in the college for any non-judge either from the executive, the Bar. This violates the principle of checks and balances.
Overlooks Talent: The system overlooks several talented junior judges and advocates. Unequal
Representation: The other area of concern is the composition of the higher judiciary; women are fairly under-represented in the higher judiciary. Since independence, we have not had a single Women Chief Justice of India.

Conclusion: India needs to restore the credibility of the higher judiciary by making the process of appointing judges transparent and democratic. Apart from reforming the collegium system, the quality of judges can also be improved through the implementation of All India Judicial Services (AIJS). The need of the hour is Judicial Primacy, rather Judicial Exclusivity.

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