[Answered] “Collegium system is deeply flawed, and is in need of urgent remedy”. Comment.

Demand of the question
Introduction. Contextual Introduction.
Body. Why collegium system is deeply flawed?
Conclusion. Way forward.

Collegium system is the system by which the judges are appointed and transferred only by the judges. The system has evolved by means of the judgments of the Supreme Court, and not by an Act of Parliament or by a Constitutional provision. Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium. The government is mandated to appoint a person as a Supreme Court judge if the collegium reiterates its recommendation.

Why the collegium system is deeply flawed?

  1. Autocratic: Collegium has been evolved by the judiciary itself for retaining the power to select judges by itself. There is no accountability to collegium system as judges select their own judges.
  2. Unaccountable: Selection of judges by collegium is undemocratic since judges are not accountable to the people and representative of peoples i.e. executive or legislative.
  3. Non-transparency and opaque: There is no official procedure for selection or any written manual for functioning. Selective publication of records of meetings with no eligibility criteria of judges, bring opacity in collegium’s functioning.
  4. Promotes nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles. Thus it encourages mediocrity in the judiciary by excluding talented ones.
  5. Inefficient: Collegium has not been able to prevent the increasing cases of vacancies of judges and cases in courts.
  6. Ignores judicial guidelines: The recent supersession in appointment is inconsistent with the view of the Supreme Court in the Second Judge’s case, 1993, where it laid that, seniority amongst Judges in their High Courts and on all India basis is significant and should be given due consideration while making appointments of Judges to the Supreme Court.
  7. Against established conventions: 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.
  8. No reforms made after fourth judges case: 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 old Collegium-based appointments mechanism.

The subjectivity and the inconsistency of the collegium system highlight the need to relook at the process of appointment of judges. The NJAC should be amended to make sure that the judiciary retains independence in its decisions and re-introduced in some form or the other. A written manual should be released by the Supreme Court which should be followed during appointments and records of all meeting should be in the public domain in order to ensure transparency and rule-based process. Apart from reforming the collegium system, the quality of judges can also be improved through the implementation of All India Judicial Services (AIJS).

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