The Collegium System is one of the very important topics in understanding the appointment of the

Supreme Court judges and the judicial system.

Appointment of Supreme Court Judges

The Constitution of India – Article 124: Establishment and constitution of Supreme Court say that:

There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by
law prescribes a larger number, of not more than seven other Judges.

Every Judge of the Supreme Court shall be appointed by the President by warrant under his/her hand
and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the
States as President may deem necessary for the purpose and shall hold office until he attains the age
of 65 years.

In judicial appointments, it is obligatory for the President to take into account the opinion of the
Chief Justice of India.

The opinion of the Chief Justice of India is binding on the Government. The opinion of the CJI must
be formed after due consultation with a collegium of at least four senior-most judges of the Supreme
Court.

Even if two judges give an adverse opinion, then he should not send the recommendation to the
Government.

Timeline for changes in the appointment procedures

After independence, India adopted the Constitution in 1950. According to the Constitution, up to
1973, the President appointed the Chief Justice of India and remaining judges of the Supreme Court
in consultation with the CJI and other judges as he deemed necessary.

1. Appointment of CJI 1950-1973

Until 1973, there existed a consensus between the Government of the day and the Chief Justice of
India.

A convention was formed where the senior-most judge of the Supreme Court was to be appointed as
the Chief Justice of India.

In 1973, A.N.Ray was appointed as the Chief Justice of India. This violated the convention formed
earlier since Justice A.N.Ray superseded three other Supreme Court judges senior to him.

Again in 1977, another chief justice was appointed who superseded his seniors.

This resulted in a clash between the Executive and the Judiciary.

2. First judges case, 1982

A petition was filed in 1982 in the Supreme Court of India.

This case is known as the S.P.Gupta Case or First Judges case.

When asked the Supreme Court of India whether the word “consultation” in the constitutional article
124 mean “concurrence”; the Supreme court overruled this and denied saying that Consultation
does not mean concurrence. The President was not bound to make a decision based on the
consultation of the Supreme Court.

Another important point in the discussion, in this case, was the part where the Supreme Court
decided that a High Court Judge can be transferred to any other high court of a state even against his
will.

3. Second judges case,1993

Another petition was filed in 1993 by the Supreme Court Advocates on Record Association (SCARA).

In this case, the Supreme court overruled its earlier verdict and changed the meaning of consultation
to concurrence. Thus binding the President of India with the consultations of the Chief justice of
India.

This resulted in the birth of the Collegium System.

4. Third Judges Case, 1998

In the year 1998, the presidential reference to the Supreme court was issued questioning the
meaning of the word consultation in articles 124, 217, and 222 of the Constitution.

The chief justice won’t be the only one as a part of the consultation process. Consultation would
include a collegium of 4 senior-most judges of the Supreme court. Even if 2 of the judges are against
the opinion, the CJI will not recommend it to the government.

In the verdict, the Supreme Court laid down strict guidelines for the appointment of Judges of the
Supreme Court and high courts which is currently known as the Collegium System.

5. Collegium System

In this system of appointment of Judges, the collegium will recommend the names of the candidates
to the Central Government.

Also, the central government will send the names of the proposed candidates for consultation.

The appointment process takes a long time since there isn’t a fixed time limit for it. If the Collegium
resends the same name again then the government has to give its assent to the names.

The Collegium System faced a lot of criticism not only from the government but also from civil
society due to its Lack of Transparency and Accountability.

This led to the 99th Constitutional Amendment Act, 2014 the National Judicial Commission Act
(NJAC) to replace the collegium system for the appointment of judges.

6. National Judicial Appointment Commission Act, 2014

NJAC too would recommend names for the Appointment of Supreme Court Judge and Appointment
and Transfer of High Court Judge

Composition of NJAC

The Chief Justice of India

2 senior-most judges of the Supreme Court

The Law Minister of India

2 eminent members that are chosen by the Selection CommitteeNational Judicial Appointments
Commission – NJAC

The aspirants should note that NJAC was established to achieve greater transparency and
accountability for the appointment of judges. But it was struck down by the Supreme Court on the
grounds that it was against the “Independence of Judiciary” i.e Principles of Basic Structure since it
involved the Political Executive in the appointment of Judges.

The current system of appointment of SC judges

In judicial appointments, it is obligatory for the President to take into account the opinion of the CJI.

The opinion of the CJI is binding on the Government. The opinion of the CJI must be formed after
due consultation with a collegium of at least four senior-most judges of the Supreme Court.

Even if two judges give an adverse opinion, then he should not send the recommendation to the
Government.

The Indian Judicial Collegium system, where existing judges appoint judges to the nation's
constitutional courts, has its genesis in, and continued basis resting on, three of its own judgments
made by Supreme Court judges ,which are collectively known as the Three Judges Cases.

The cases

Following are the three cases:

S. P. Gupta v. Union of India - 1981[1] (also known as the Judges' Transfer case)

Supreme Court Advocates-on Record Association vs Union of India - 1993[2]

In re Special Reference 1 of 1998[3]

Over the course of the three cases, the court evolved the principle of judicial independence to mean
that no other branch of the state, – including the legislature and the executive, – would have any say
in the appointment of judges. The court then created the collegium system, which has been in use
since the judgment in the Second Judges Case[2] was issued in 1993. There is no explicit mention of
the collegium either in the original Constitution of India or in successive amendments.
The Third Judges Case of 1998[3] is not a case but an opinion delivered by the Supreme Court of
India responding to a question of law regarding the collegium system, raised by then President of
India K. R. Narayanan, in July 1998 under his constitutional powers.

Further, in January 2013, the court dismissed as without locus standi, a public interest litigation filed
by NGO Suraz India Trust that sought to challenge the collegium system of appointment.[4]

In July 2013, Chief Justice of India P. Sathasivam spoke against any attempts to change the collegium
system.[5]

On 5 September 2013, the Rajya Sabha passed the Constitution (120th Amendment) bill, 2013, which
amends articles 124(2) and 217(1) of the Constitution of India, 1950, and establishes the National
Judicial Appointments Commission, on whose recommendation the President would appoint judges
to the higher judiciary.[6]

The amendment was struck down by the Supreme Court for being unconstitutional on 16 October,
2015. The constitutional bench of Justices J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh
Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice
Chelameswar upheld it.[7]

Judicial meaning of the word "Recommendation"

In its judgement on the presidential reference, Supreme Court has elaborately dealt with the
modality of rendering recommendation by a constitutional entity such as Supreme Court, President
of India, etc. It is not at the discretion of the person consulted to render the recommendation but
internal consultations with the peers shall be made in writing ,and the recommendation shall be
made in accordance with the internal consultations.[3] Here ,internal consultations refer to panels of
existing Supreme Court judges appointed by existing judges.

National Judicial Appointments Commission Act

The Lok Sabha on 13 August 2014 and the Rajya Sabha on 14 August 2014 passed the National
Judicial Appointments Commission (NJAC) Bill, 2014 to scrap the collegium system of appointment of
Judges. The President of India has given his assent to the National Judicial Appointments Commission
Bill, 2014 on 31 December 2014, after which the bill was renamed as the National Judicial
Appointments Commission Act, 2014.

99th Amendment and NJAC Act quashed by Supreme court

By a majority opinion of 4:1, on 16 October 2015, Supreme Court struck down the constitutional
amendment and the NJAC Act restoring the two-decade-old collegium system of judges appointing
judges in higher judiciary.[8][9][10] Supreme Court declared that NJAC is interfering with the
autonomy of the judiciary by the executive which amounts to tampering with the basic structure of
the constitution where parliament is not empowered to change the basic structure. However, the
Supreme Court also acknowledged that the collegium system of judges appointing judges is lacking
transparency and credibility which would be rectified/ or improved by the Judiciary.