News: The article discusses the collegium system and its inconsistencies.
Recently SC recommended names of two judges to the government, for appointment as Supreme Court judges, by superseding three senior judges of Delhi High Court. The recommendation raises several doubts about the validity of collegium system as:
- Two judges whose names have been superseded were recommended by collegium in December, 2018.
- One of the judges recommended now, Justice Maheshwari, was earlier overlooked by the collegium in October 2018, hence bringing arbitrariness in decision making.
- The supersession is done without any valid reasons and is termed arbitrary and whimsical because all of the three proposed to be superseded are fine judges and neither lack integrity nor judicial competence.
- It tramples upon the long established convention of seniority in appointments.
Similar instances of arbitrary supersession happened earlier:
- Erstwhile CJI T.S.Thakur refused to recommend the name of one of the finest judges, Justice Sanjay Kishan Kaul, to SC because of personal vendetta.
- Justice AP Shah was kept out of the Supreme Court because CJI SH Kapadia did not prefer him.
Supersession 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 weight while making appointments from amongst High Court Judges to the Supreme Court.
- Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court.
- Supersession, as a rule, must never be encouraged unless there are grave and compelling circumstances. Although the NJAC Act, 2014, meant to replace the collegium system of judges, was struck down by SC in 2015, but the subjectivity and the inconsistency of the collegium system mandates a relook at the process of appointment of judges and the NJAC should be re-introduced in some form or the other.
- Collegium system in India is the system by which the judges are appointed by the judges only also referred to as “Judges- selecting- Judges”.
- It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
- The Supreme Court collegium is headed by the Chief Justice of India and comprises four other senior most judges of the court. A High Court collegium is led by its Chief Justice and four other senior most judges of that court.
- 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 bound to appoint a person as a Supreme Court judge if the collegium reiterates its recommendation.