1. Collegium System, what exactly is it?
The Collegium System is a system of appointing judges to India’s state-level High Courts, and national-level Supreme Court. Under this system, the responsibility of appointing judges falls on a five-member body of senior Supreme Court judges, led by the Chief Justice of India (CJI). In essence, It is a system of judges appointing judges. This system is not part of the India’s Constitution, but after much deliberation and the span of three important cases in the matter (a.k.a. Three Judges Cases), the judiciary came to an agreement that to uphold their independence, neither the executive nor the legislative branches of government should have any say in their affairs.
2. Why is it criticized?
The main reason the collegium system was evolved was to maintain the judiciary’s and separate it from the executive but over time, it has become a system of appointment “for the judges”. The main drawback being that it leads to nepotism and also lacks transparency and accountability, which has resulted in incompetent and inefficient appointments.
The Centre has termed the system of judges appointing judges “illegal”, saying that it worked like a huge favour dispensing scheme, undermining the efficiency of the courts. The Supreme Court Bar Association also criticized the Collegium system blaming its “give-and-take” culture and lowering judicial standards, adding that there was discrimination between politicians and actors (who get instant relief from courts) and the common man (who struggles for years for justice).
3. What is the proposed solution?
To reform the existing collegium system, the National Judicial Appointments Council (NJAC) was established by the Union Government of India by amending the Constitution of India through the 99th Constitutional Amendment Act, 2014. The NJAC proposes to make the appointment of High Court and Supreme Court judges and chief justices more transparent. They will be selected by the commission, whose members will be drawn from the judiciary, legislature and civil society. The NJAC Act is based on similar Acts in Britain and the United States of America.
4. How would the NJAC function?
Comprising of 6 members, the NJAC would be responsible for the appointment and transfer of judges to the higher judiciary in India. Members of the NJAC would be the Chief Justice of India, two senior most judges of the Supreme Court, Union Minister of Law & Justice, and two eminent persons nominated by Chief Justice, the Prime Minister or the leader of the Opposition in the Lok Sabha, with any two of its members having the power to block recommendations. The secretariat of NJAC was proposed to be with the law ministry. The NJAC sought to create a balance between the political executive, the judiciary and even civil society. It preserved judicial independence by not only having three of the six members as Supreme Court judges but also made the Chief Justice the Chairperson.
5. Why is there a problem using the NJAC?
The main concern of the NJAC is the involvement of Government in the council. It has to be noted that by giving the Government a substantial say in the appointment of judges, NJAC might compromise the independence of the judiciary, which has been cornerstone in ensuring the peoples’ faith in democracy. The NJAC limits the judiciary in scrutinizing the executive’s malafide actions and its overreach. Besides, the NJAC has not laid down an objective procedure for appointments. These include norms to ensure transparency in nominations, criterion for assessing the suitability of the candidates and objective guidelines for determining meritorious candidates. Judges must also be ensured security of tenure as well as an adequate tenure period through the new mechanism.
6. Where does this debate stand at the moment?
On 16th October 2015 the Constitution Bench of Supreme Court by 4:1 majority upheld the collegium system and struck down the NJAC as unconstitutional. The bench had asked the Centre to draft new Memorandum of Procedure (MoP) in consultation with the Chief Justice of India. Following the courts instructions, Law Minister D. V. Sadananda Gowda wrote to the Chief Ministers of all states seeking their views on ways to improve the collegium system. The 4 issues the Government wants to concentrate on while drafting the MoP are eligibility criteria, transparency in the appointment process, a permanent secretariat for the collegium and a process to evaluate and deal with complaints against candidates. On 7th March 2015, the Government sent the MoP on judicial appointments to Chief Justice TS. Thakur.
On the other hand, the Supreme Court Collegium — a panel of senior judges headed by the Chief Justice of India — has recommended mass transfer of High Court judges who have been accused of corruption and misconduct. This is the toughest punishment the collegium can give, since judges can be removed only by Parliament thorough impeachment.