Before the year 1993, the judges themselves did not appoint judges in our country. This work was done by the government. At that time, the government used to send recommendations for the appointment of new judges, their transfer and their promotion to the Chief Justice (CJI) of the Supreme Court. Then after consultation with them the names which were finalized were sent to the President. The President used to officially appoint those judges. This system was in accordance with the constitution. The Constitution clearly states how the judges of the Supreme Court and High Courts will be appointed. It has been mentioned in Article 217. This article says that the President will have the right to appoint judges in India and the President will have to consult the CJI, the Governor concerned and the Chief Justice of the High Court for this.
three important decisions
The word ‘consultation’ has been used for discussion in the constitution. The whole controversy actually starts from here. In this context, there are three decisions of the Supreme Court between 1981 and 1998, which are also known as ‘Judges’ cases’.
- The first case is of the year 1981, when the Supreme Court was asked to interpret the word ‘consultation’ written in the constitution. The Supreme Court said that ‘consultation’ means ‘discussion’ cannot mean ‘concurrence’ from anywhere.
- In the second case of 1993, the Supreme Court changed its own old observation and interpreted the word consultation as ‘consent’. This means that the President will appoint judges, but he will have to take the consent of the CJI for this. After this, the consent of the Chief Justice of India became necessary in the appointment of judges.
- That’s why many judges say that by doing this the Supreme Court has ‘hijacked’ the Constitution itself. Actually, the collegium that was formed by this decision is neither mentioned anywhere in our constitution nor has the Government of India passed any law for this in the Parliament.
- Another important decision of the Supreme Court came in the year 1998, in which it was said that the collegium for the appointment of judges would be expanded and it would also have the four most senior judges of the Supreme Court apart from the CJI.
charge on the collegium
In a few years, this Collegium became so strong that it started accusing of promoting familyism in the judicial system. People sometimes sarcastically give it a name like ‘Uncle Judge Syndrome’.
- In the year 2012, the two hundred and thirtieth report of the Law Commission of India came out. It was told that every third judge in the High Courts is the uncle of some lawyer. For example, at that time there were a total of 47 judges in the Punjab and Haryana High Court, out of which 16 were those whose family members were advocates in the same High Court. For these lawyers, this judge was their uncle. It means to say that familyism has increased in the judicial system from the collegium system.
- Another major problem with the Coliseum is the lack of transparency. At present there are 27 judges including the CJI in the Supreme Court, while there should be 34. Out of these 27, apart from the Chief Justice, the Collegium should have four more senior most judges. But there are 6 judges in this collegium. This is because in this collegium that judge is also kept, who will be appointed as the new CJI in future on the basis of seniority.
- It is not told on what basis the judges are appointed in the collegium.
There is no record of which judge in the collegium dissented during the entire process. It is not known how the judges are being appointed.
- Justice Markandey Katju, another former judge of the Supreme Court, has also said that this system runs on the principle of ‘one hand, one hand, take’. That’s why this system has failed to produce good judges.
- The point is that it is in a way mandatory for the government and the President to follow the recommendations of the Collegium. If the government wants, it can request the collegium to reconsider its recommendations, but if the collegium sends the same names again after reconsideration, then the government will not be able to do anything. It will be mandatory for him to approve these names and send them to the President.
As an alternative to this system, in the year 2014, the Central Government brought a law named ‘National Judicial Appointment Commission Act’. This law was brought in the country to form such a commission, which can appoint judges in the judiciary. This commission would have a total of 6 members. In this, apart from the CJI, the two most senior judges of the Supreme Court, the Law Minister of the Government of India and two other members would have been there. These two other members were selected by a ‘Selection Committee’, which also included people from the opposition. This law also came into force after the President’s signature on 31 December 2014, but in 2015 the Supreme Court rejected this law. That is, this law did not work even after it was made. Now the central government wants that this system of collegium should be changed.
Disclaimer: The views expressed above are the author’s own.