MC Explains | How Supreme Court and High Court judges are appointed in India

The collegium system, also called ‘judges selecting judges,’ is the way judges of the Supreme Court and the high courts are appointed and transferred. (Image: Supreme Court of India building)

“The bedrock of our democracy,” noted 17th century French philosopher Montesquieu, “is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.”

These words formed the bedrock of democratic rule worldwide, the theory of separation of powers of the three branches of the government – the legislature, the executive and the judiciary. An independent judiciary remains the sine qua non of a vibrant democratic system. Only an impartial and independent judiciary can stand as a guarantor of liberty.

In practice, however, such a division sharpens the potential of a faceoff between the executive and the judiciary, a trend evidenced in India from time to time.

It is currently manifest in a war of words between the Supreme Court represented by several senior judges, including Chief Justice of India DY Chandrachud, and the Union government symbolised by law minister Kiren Rijiju on the selection of the higher judiciary through the collegium system.

There are indications that the battle may get more intense, veering onto sensitive areas such as the government delaying appointments made by the higher judiciary. The CJI is on record saying that the collegium system ensured judicial independence and fairness of selection. He was reacting to Rijiju’s scathing criticism of the ‘opaque’ selection of judges. On November 27, the law minister criticised the top court’s observations that the government was sitting on files related to the appointment of judges cleared by the collegium.

Next day, Supreme Court judge SK Kaul ‘disapproved’ of the minister’s observation, saying this “should never have happened.”

In between, media reports said the Central government has asked the Supreme Court collegium to reconsider 20 files related to the appointment of high court judges, including a gay advocate.

Moneycontrol looks at how the collegium system works, its motivations, history, and alleged drawbacks.

What is the collegium system?

The collegium system, also called ‘judges selecting judges,’ is the way judges of the Supreme Court and the high courts are appointed and transferred. It is not applicable to the lower or subordinate courts. The system evolved by means of Supreme Court judgments, and not by an act of Parliament or by a constitutional provision.

According to the Constitution of India, “the chief justice and Judges of the High Courts are to be appointed by the President under clause (1) of Article 217 of the Constitution.” It was largely an uncomplicated matter at that early stage.

How does the collegium system work?

The President of India appoints the CJI and other Supreme Court judges. The outgoing CJI recommends a successor. In practice, the process has been governed strictly by seniority ever since the supersession controversy of the 1970s.

In 1973, Justice AN Ray was appointed chief justice of India after the government overlooked the seniority of three judges who had ruled against it on various occasions.

What was the need for the collegium system?

The system was introduced to strengthen and improve the appointment process, to ensure that the CJI’s opinion is not merely his/her individual opinion but an opinion formed collectively by a body of people at the apex level of the judiciary. It is aimed at preserving the democratic system by maintaining the independence of the judiciary as a part of the basic structure and securing rule of law.

How has the collegium system evolved?

Constitution

The constituent assembly adopted a consultative process of appointing judges in 1949 to ensure that judges are not affected by political influence. It avoided legislative interference and provided a veto to the chief justice.

Instead, it vested in the President of India the power to make appointments and transfer judges between high courts. The President, normally acting on the advice of the council of ministers, was however needed to consult certain authorities such as the CJI or the chief justice of the high court.

First Judges Case, 1981

The Supreme Court in the First Judges Case, 1981, held by a majority that among the opinions of the three constitutional functionaries, the opinion of the CJI did not enjoy primacy over those of the other two in the matter of appointment of judges. It ruled that the word “consultation” could not be interpreted to mean “concurrence”, i.e., the CJI’s opinion is not binding on the executive. The executive could depart from the CJI’s opinion only in exceptional situations and any such decision could be subject to judicial review.

Second Judges Case, 1993

The apex court in the Second Judges Case, 1993, overruled its earlier decisions. It now held that consultation meant concurrence and that the CJI’s opinion enjoys supremacy – binding on the executive. This decision was justified by the court, claiming that the CJI could be the best option to know and assess the worth of candidates. However, the CJI has to formulate the opinion only through a body of senior judges that the court described as the ‘collegium.’

Third Judges Case, 1998

The Supreme Court in the Third Judges Case, 1998, clarified that the collegium would consist of the CJI and the four senior-most judges in the case of appointments to the Supreme Court and the CJI and the two senior-most judges in the case of appointments to the high court.

Over the course of these three cases, the court evolved the principle of judicial independence. This meant that no other branch of the state could interfere with the appointment of judges. It is with this principle in mind that the Supreme Court introduced the collegium system.

National Judicial Appointments Commission (NJAC)
The government, through the 99th constitutional amendment in 2014, sought to replace the collegium with the NJAC. It was composed of three Supreme Court judges, the central law minister, and two civil society experts. A person would not be recommended by the NJAC if any two of its members did not accept a recommendation, making the appointment process more broad-based. However, it was struck down by the Supreme Court in 2015 in the Fourth Judges Case.

Fourth Judges Case, 2015

In the Fourth Judges Case, 2015, the Supreme Court upheld the primacy of the collegium by striking down the NJAC law. The court’s rationale was that the NJAC law offered politicians equal power in judicial appointments to constitutional courts, which is against the provision of “separation of power” under the basic structure of the Constitution.

Thus, the Supreme Court declared the collegium as part of the Constitution’s basic structure – its power could not be removed even through a constitutional amendment. However, due to widespread criticism against the collegium, the judgement promised to consider measures to improve the collegium system. For this purpose, the Supreme Court required the government to submit a Memorandum of Procedure.

What is the Memorandum of Procedure?

It is an agreement between the judiciary and the government with a set of guidelines on making appointments to the higher judiciary. Even though the government sent a draft memorandum to the Supreme Court in 2017, it is stuck between them as certain sections in it are alleged to take away the powers of the court to appoint judges.

How are other Supreme Court judges appointed?

Supreme Court judge appointments are recommended by the collegium consisting of the CJI and the four senior-most Supreme Court judges. The collegium recommends candidates to the law minister, who forwards it to the prime minister who then advises the President for the final appointment. The President appoints the chief justices of high courts in consultation with the CJI and the governor of the respective state.

What are the criticisms against the collegium system?

Critics say the word ‘collegium’ is not mentioned in the Constitution and that it was evolved by the judiciary to retain its power to select judges.

They allege the collegium system is undemocratic since judges are not elected by the people and are not accountable to the people or anyone else.

They also claim it is non-transparent and opaque. In addition, it promotes nepotism, where the children of previous judges or senior lawyers tend to be popular choices for judicial roles.

They claim the collegium has not been able to prevent the increase in vacancies of judges and cases in the courts.

Critics say the convention of seniority has long been held as the procedure for appointments, but ‘supersession’ ignores and abdicates this convention, creating space for subjectivity and individual bias in appointments.

After striking down the NJAC, the court did nothing to amend the NJAC Act or add safeguards to it that would have made it constitutionally valid. Instead, the court reverted to the collegium-based appointments mechanism.