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Collegium system

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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.[1] The opaque collegium system, misused to appoint family and relatives of the judges, is notorious for the nepotistic phenomenon called the Uncle judge syndrome, In 2017, the Supreme Court of India had recognised this rot in 2017, but as of 2025 little has been done in reality to fix it.[2] Union Minister of State, HRD, Upendra Kushwaha noted that in 2022 the judges of Supreme Court of India so far have come only from 250-300 families which have multiple judges to the Supreme Court, and there is negligible representation of women and Scheduled Castes in higher judiciary.[3] Around 50% of the judges of high courts and 33% judges in the Supreme Court are family members of those in higher echelons of judiciary. Supreme Court has a sanctioned strength of 31 judges, out of which six judges were sons of former judges and appointments of over 88 judges from 13 high courts who were either born to a family of lawyers, judges, or worked under some legal luminaries.[4] Consequently, the collegium system has often been alleged to have caste bias due to the lack of representation of marginalised communities, i.e., OBCs, SCs and STs, in the Supreme Court and high courts.[1]

History

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1980 onwards: evolution of the concept

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Following are the three cases:

  1. S. P. Gupta v. Union of India – 1981[5] (also known as the Judges' Transfer case)
  2. Supreme Court Advocates-on Record Association vs Union of India – 1993[6]
  3. In re Special Reference 1 of 1998[7]

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[6] 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[7] 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.[8]

In July 2013, Chief Justice of India P. Sathasivam spoke against any attempts to change the collegium system.[9]

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 Judicial Appointments Commission, on whose recommendation the President would appoint judges to the higher judiciary.[10] This bill never became an Act.

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.[11]

  • 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.[7] Here, internal consultations refer to panels of existing Supreme Court judges appointed by existing judges.

2014 National Judicial Appointments Commission Act

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The Lok Sabha on 13 August 2014 and the Rajya Sabha on 14 August 2014 passed the National Judicial Appointments Commission (NJAC) Bill, 2014 and the Constitution (121st Amendment) Bill, 2014 to scrap the collegium system of appointment of Judges. The President of India gave his assent to the National Judicial Appointments Commission Bill, 2014 on 31 December 2014, after which the bills became National Judicial Appointments Commission Act, 2014 and Constitution (99th Amendment) Act, 2014 respectively.

2015 99th Amendment and NJAC Act quashed by Supreme court

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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.[12][13][14] 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.

Current members of Collegium

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For High Court elevation

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1. Sanjiv Khanna, The Chief Justice of India.[15]

2. B. R. Gavai, Judge, Supreme Court of India.[15]

3. Surya Kant, Judge, Supreme Court of India.[15]

For Supreme Court elevation

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4. A. S. Oka, Judge, Supreme Court of India.[15]

5. Vikram Nath, Judge, Supreme Court of India.[15]

See also

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References

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  1. ^ a b "Madras High Court judge alleges caste bias in collegium system". The Indian Express. 9 November 2015. Retrieved 15 January 2016.
  2. ^ Supreme Court wants to get rid of ‘uncle judges’ syndrome. Can it?, Times of India, 13 Jan 2025.
  3. ^ "Only 250-300 families have sent judges to SC: Upendra Kushwaha". The Indian Express. 12 December 2017. Retrieved 9 November 2022.
  4. ^ "50% HC judges related to senior judicial members: Report". Hindustan Times. 19 June 2015. Retrieved 9 November 2022.
  5. ^ Bhagwati, P. "S. P. Gupta v. President of India". indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.
  6. ^ a b Verma (for the majority), J S. "Supreme Court Advocates-on-RecorIndia". indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.
  7. ^ a b c Barucha, S. P. "In re Special Reference 1 of 1998". indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.
  8. ^ Express News Service. "Apex court junks PIL to revisit collegium system". The Indian Express. Retrieved 15 January 2013.
  9. ^ "No need to change collegium system : Justice Sathasivam". NiTi Central. 3 July 2013. Retrieved 16 July 2013.
  10. ^ "Elders Clear bill to set up Judicial Appointment Commission". The Hindu. 5 October 2013. Retrieved 12 October 2013.
  11. ^ "NJAC Act unconstitutional, collegium system to continue: Apex Court". Business Line. Chennai. Press Trust of India. 16 October 2015. Retrieved 26 October 2018.
  12. ^ "SC declares NJAC unconstitutional; Chelameswar J dissents [Read Judgment]". 1, Law Street. 16 October 2015. Retrieved 3 November 2011.
  13. ^ "Supreme Court ... vs Union Of India on 16 October, 2015". Indian Kanoon. Retrieved 26 June 2021.
  14. ^ "SC Bench strikes down NJAC Act as 'unconstitutional and void'". The Hindu. 17 October 2015. Retrieved 17 October 2015.
  15. ^ a b c d e "Justice AS Oka new member in SC Collegium". new indian express. 13 November 2024.
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