We must all have heard the sentence “I will sue you in Court” at-least once in our life. Have you ever wondered, what does that reflect? That reflects the faith of a common man in the judicial system. And to keep that faith alive, the most important feature of our constitution is the “independence of judiciary” reflected under article 50. To ensure the independence of the judiciary, judges are neither appointed by the executive nor by the legislature in our country. Rather, we follow the system of appointment of the judges by the judges and this system is termed as “collegium system”.
Collegium in India is a three-member committee comprising of the Chief Justice of India and the other two senior-most judges of the Supreme Court. The task of the collegium is to recommend the appointment and transfer of the judges of the Supreme Court and the High Court. After a careful scrutiny, the names are recommended to the President of India for appointment who is bound by the decision taken by the collegium. Though the constitution under article 124, authorizes the President to appoint the judges on recommendation of the collegium, the decision taken by the collegium is first sent to the ministry of law and justice. The government is competent to raise objections to the recommendations and ask the collegium to reconsider its decision but the ultimate authority of the appointment of the judges lies solely with the collegium.
The system has its own flaws and has been criticized for various reasons including nepotism. The government tried to dilute the system by bringing the National Judicial Appointment Commission via 99th constitutional amendment. The constitutionality of the amendment was challenged in the case of Supreme Court Advocates on Record Bar Association Vs. Union of India. The Supreme Court declared the amendment as unconstitutional. The Court further declared that the National Judicial Appointment Commission violates the principle of independence of judiciary and held the independence of judiciary as a part of ‘basic structure’. In the same case Justice Chelameswar gave a dissenting judgment supporting the National Judicial Appointment Commission.
India is a democratic country and independence of judiciary is a major foundation stone of any democracy. It is no doubt true that the appointment of the judges should not be given in the hands of the executive of the legislature. But, the system of collegium is also not an ideal system and must undergo some necessary changes to keep the faith of the people alive in the judicial system.