• The Centre has told the Supreme Court that “sensitive material” with the government is delaying the implementation of the SC Collegium’s recommendations for appointments of Chief Justices to High Courts.

• Attorney General R. Venkatramani told a bench of Chief Justice D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra that he has received certain inputs from the Union government which are sensitive in nature.

• He also told the top court that revealing these issues in the public domain would neither be in the interest of the institution nor of the judges involved.

• The top court was hearing a plea filed by advocate Harsh Vibhore Singhal seeking a direction that a time limit be fixed for the Centre to notify the appointment of judges recommended by the Supreme Court Collegium.

Supreme Court Collegium

• The collegium system is a forum including the Chief Justice of India and four senior-most judges of the SC, which recommends appointments and transfers of judges. 

• Judges of the higher judiciary are appointed only through the collegium system, and the government has a role only after names have been decided by the collegium.

• The Indian Constitution does not explicitly mention the collegium system for the appointment of judges to the Supreme Court and High Courts. Instead, the collegium model evolved through judicial interpretations over time, primarily based on Articles 124 and 217.

What the Constitution Prescribes:

• Article 124: Deals with the appointment of judges to the SC. It mandates that appointments should be made by the President, after consultation with such judges of the SC and HCs as the President deems necessary. The Chief Justice of India must be consulted for all appointments, except for their own.

• Article 217: Deals with the appointment of judges to the HCs. It specifies that judges are appointed by the President after consulting the CJI, the Governor of the state, and the Chief Justice of the concerned HC. 

Evolution of the Collegium System

• The collegium system arose due to judicial interpretations of the term “consultation” in the appointment process, particularly through three landmark cases known as the Three Judges Cases.

• First Judges Case (1982): The SC ruled that consultation with judges did not mean concurrence. This judgment gave primacy to the Executive (i.e., the government) in the appointment process.

• Second Judges Case (1993): This ruling reversed the earlier decision, interpreting “consultation” as concurrence, meaning the CJI’s advice became binding in the appointment of judges. However, the CJI was required to consider the views of two senior-most colleagues.

• Third Judges Case (1998): The SC clarified that the CJI’s opinion in judicial appointments should be formed in consultation with a collegium consisting of the four senior-most judges of the SC.

• All opinions of collegium members must be in writing, and the majority view would prevail in case of disagreements.

• If two or more collegium members oppose a candidate, the CJI should not forward the recommendation to the government.

• These judgments collectively established the collegium system, giving primacy to the judiciary over the Executive in judicial appointments.

Role of the Executive

• The government has no direct role in selecting judges. It acts after the collegium makes its recommendations.

• The government may conduct background checks through the Intelligence Bureau (IB) for lawyers being elevated to the HC or SC. 

• It can raise objections or request clarifications regarding the collegium’s choices, but if the collegium reiterates its recommendation, the government is bound to comply and make the appointment.

Arguments against collegium system

• View of Constituent Assembly: It had rejected the proposal to vest the Chief Justice with veto power over appointments.

• Violation of Constitutional Provision: According to the 214th Law Commission of India, collegium is a clear violation of Article 74 of the Constitution of India which demands the President to act on the aid and advice of the Council of Ministers.

• Non-Transparent: Collegium system is non-transparent and closed in nature as there exists no system of checks and balances which is essential to a democracy.

• Uncle Judges Syndrome: Law Commission in its 230th report said that nepotism, corruption and personal patronage is prevalent in the functioning of the collegium system

• Merit vs Seniority: There have been numerous cases where people with better qualifications and better track records have been sidelined to make way for someone incompetent due to seniority rule.

(The author is a trainer for Civil Services aspirants.)