Collegium System: Composition, Functioning, Criticisms and Reforms

The Collegium System in India is the mechanism through which judges of the Supreme Court and High Courts are appointed and transferred. It is not mentioned in the original Constitution of India nor enacted by Parliament. It evolved entirely through judicial precedents set by the Supreme Court to safeguard judicial independence under Article 50 of the Constitution. Under this framework, the judiciary exercises primary authority in judicial appointments, with the executive branch playing a consultatory and administrative role.

Evolution of the Collegium System

The First Judges Case (1981)

In S.P. Gupta v. Union of India (1981), the Supreme Court ruled that the word “consultation” in Articles 124(2) and 217(1) does not mean “concurrence”. The court held that the ultimate power of appointment of higher judiciary judges rested with the Central Government, giving executive primacy over judicial recommendations.

The Second Judges Case (1993)

In Supreme Court Advocates-on-Record Association v. Union of India (1993), a nine-judge bench overruled the S.P. Gupta judgment. The court ruled that “consultation” means “concurrence”. It established the Collegium System, giving primacy to the Chief Justice of India (CJI) in judicial appointments. The CJI was required to consult the two senior-most judges of the Supreme Court.

The Third Judges Case (1998)

In a Special Reference made by President K.R. Narayanan under Article 143 of the Constitution, the Supreme Court expanded the Collegium. The CJI must consult a panel of four senior-most judges for Supreme Court appointments, and two senior-most judges for High Court appointments. The court held that recommendations made without consulting the panel are non-binding on the government.

The Fourth Judges Case (2015)

In 2014, Parliament passed the 99th Constitutional Amendment Act and the National Judicial Appointments Commission (NJAC) Act to replace the Collegium System with a six-member commission. In October 2015, a five-judge bench declared both acts unconstitutional by a 4:1 majority, holding that executive involvement in judicial appointments violated the basic structure of the Constitution.

Composition and Working Mechanism

Supreme Court Collegium Structure

The Supreme Court Collegium handles appointments of Supreme Court judges and transfers of High Court judges. It consists of the Chief Justice of India and the four senior-most judges of the Supreme Court. If the prospective CJI is not among the four senior-most judges, they are included as a fifth member.

High Court Collegium Structure

The High Court Collegium recommends judges for appointment to the respective High Court. It consists of the Chief Justice of the High Court and the two senior-most judges of that High Court. These recommendations go to the Chief Minister and Governor of the State, who forward them with comments to the Ministry of Law and Justice, which then submits them to the Supreme Court Collegium.

Comparison of Collegium Systems

Procedure of Appointment

The Collegium initiates recommendations and sends them to the Union Law Ministry. The Law Ministry collects background reports from the Intelligence Bureau (IB) and forwards the file back to the CJI. The government can request reconsiderations once. If the Collegium unanimously reiterates its recommendation, the government must issue the appointment warrant.

Constitutional Provisions Governing Judicial Appointments

• Article 124(2): Specifies that Supreme Court judges are appointed by the President after consultation with judges of the Supreme Court and High Courts.
• Article 217(1): Outlines that High Court judges are appointed by the President after consultation with the CJI, the Governor of the State, and the Chief Justice of the High Court.
• Article 222(1): Empowers the President to transfer a High Court judge from one High Court to another after consultation with the CJI.
• Article 50: Directs the State to separate the judiciary from the executive in public services.

Criticisms and Concerns

• Lack of Transparency: Deliberations and evaluation metrics remain closed to public scrutiny, without published criteria for shortlisting candidates.
• Exclusion of Executive Input: Eliminates checks and balances between the legislature, executive, and judiciary.
• Nepotism and Bias: Often criticized as an “uncle judge syndrome” where familial ties or close associations influence judicial elevations.
• Judicial Vacancies: Differences between the government and the Collegium lead to delays in approving names, creating high vacancy rates across courts.
• Under-Representation: Low representation of women, Scheduled Castes, Scheduled Tribes, and backward communities in constitutional courts.

Proposed Reforms and Memorandum of Procedure (MoP)

Memorandum of Procedure (MoP) Revision

Following the Fourth Judges Case in 2015, the Supreme Court agreed to finalize a revised MoP in consultation with the Union Government. Key proposed clauses include establishing a permanent secretariat for screening candidates, setting clear eligibility criteria, and granting the Centre the right to reject candidates on national security grounds.

Global Comparison of Judicial Appointments

Core Exam-Oriented Facts

• The Collegium System is an invention of the judiciary, not mentioned anywhere in the Constitution of India.
• The system evolved through four major cases: 1981, 1993, 1998, and 2015.
• The First Judges Case (1981) established executive primacy, whereas the Second Judges Case (1993) established judicial primacy.
• The Supreme Court Collegium consists of the CJI and 4 senior-most judges for SC appointments and transfers.
• The High Court Collegium consists of the HC Chief Justice and 2 senior-most HC judges.
• Article 124(2) governs the appointment of Supreme Court judges, while Article 217(1) governs High Court appointments.
• Article 222(1) regulates the transfer of High Court judges between states.
• The 99th Constitutional Amendment Act and the NJAC Act were struck down in 2015 for violating the basic structure doctrine.
• Reiteration of a candidate’s name by the Collegium makes the recommendation legally binding on the President.
• Justice J.S. Verma authored the majority judgment in the Second Judges Case (1993) that created the Collegium.