DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

SESSION (2021-2022)

PROJECT

ON

‘COLLEGIUM SYSTEM AND ITS ADVANTAGES AND DISADVANTAGES’

UNDER SUPERVISION OF: SUBMITTED BY:

Dr. Atul Kumar Tiwari Nandini Srivastava

Associate Professor of Law IV Semester

Dr. Ram Manohar Lohiya National Law University B.A. LL.B. (Hons.)

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 ACKNOWLEDGEMENT

I would like to take this opportunity to extend a word of my gratitude to my esteemed

Constitutional Law Teacher Dr. Atul Kumar Tiwari for providing me with the opportunity to
make a project on the topic “COLLEGIUM SYSTEM AND ITS ADVANTAGES AND
DISADVANTAGES” and for being constant source of inspiration for me in the pursuance
of this project. Both of them have been gracious enough to guide me on the right path which
has enabled me to strengthen my efforts pertaining to the comprehensive research and efforts
put into the making of this project.

I would also wish the reader of my project a knowledgeable experience. The project has
been researched meticulously and has been materialized whilst making sure that the utmost
level of care and finesse is undertaken so as to see that the information mentioned is
concurrent with the highest benchmarks of accuracy, precision and perfection.

Thanking You

Nandini
Srivastava

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 Table of Contents
ACKNOWLEDGEMENT ................................................................................................................................... 2
INTRODUCTION ............................................................................................................................................. 4
PRE COLLEGIUM AND POST COLLEGIUM ERA COMPARISON ....................................................................... 6
CONCLUSION............................................................................................................................................... 10

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 INTRODUCTION
The first question that is to be asked is “What is the Collegium System?”
It is a system under which appointments and transfers of judges are decided by a forum of the
Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the
Indian Constitution. Article 1241 and Article 2172 deals with the appointment of judges of SC and
HC respectively.

Independence of judiciary is one of the basic aspects of the constitutional framework. The makers
of our Constitution envisaged a judiciary absolutely independent from influences of the legislature
and the executive. But there is little doubt that the collegium system for appointing judges to the
higher courts in the country has been fraught with significant problems. Complete lack of
transparency was one of the significant drawbacks of the collegium system. Nobody outside the
system knew as to why some judges were appointed and some others were rejected.

1st judges case- S. P Gupta v. Union of India3

In 1981, this system of appointment was challenged on the ground that it impedes judicial
independence. In S. P Gupta v. Union of India, 12 (Judges I) petitioners argued that the word
“consultation” in the relevant provisions of the Constitution should be read as “concurrence,” and
that the judiciary should exercise a veto over judicial appointments. The challenge failed and the
Court held that in the event of a disagreement between the Executive and the Chief Justice on
whom to appoint as a judge of the Supreme Court, the views of the Executive would prevail.
Another challenge was mounted against this provision in 1993.

2nd judges case- Supreme Court Advocates on Record Association v. Union of India4-

Overturning its previous decision, the Court, in Supreme Court Advocates on Record Association
v. Union of India, held that the ‘ultimate power’ of appointment vested in the executive was being
abused, and the existing system of appointments had resulted in merit being overlooked due to
interference by the executive. The Court held that judicial independence is part of the unamendable

1
Article 124, The Constitution of India 1949.
2
Article 217, The Constitution of India 1949.
3
S. P Gupta v. Union of India, AIR 1982 SC 149.
4
Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441.

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basic structure of the Constitution, and to protect this principle, the judiciary should have ‘primacy’
over the appointments process. The term “consultation” with the Chief Justice was interpreted to
mean that the Chief Justice had to concur in the appointment of the judge. The opinion of the Chief
Justice was in turn not her individual opinion, but that of the Chief Justice in consultation with a
collegium of the two senior-most judges of the Supreme Court, and the senior-most judge of the
Supreme Court from the High Court of the candidate. If the government differed in its opinion, it
could send the recommendation back to the collegium. However, if the Chief Justice reiterated the
decision, the government would be bound by it. This judgment introduced the collegium-led
appointments system.

3rd JUDGES CASE-

In an advisory opinion issued in 1998 (Judges III), the Supreme Court modified and further
clarified the appointments system. It held that the collegium for appointment to the Supreme Court
would comprise the Chief Justice and the four senior-most judges of the Court. In the 1993 and
the 1998 judgments, the Court also stated that the inter-se seniority of judges within their High
Court and their all India seniority should be the primary ground for appointment to the Supreme
Court. However, other considerations, such as outstanding merit and ensuring regional and other
diversity, would be grounds to depart from the seniority norm.

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 PRE COLLEGIUM AND POST COLLEGIUM ERA COMPARISON
We find that both the pre-collegium and the collegium system maintain the geo‐ graphical and
religious diversity of India in the candidates that are appointed. How‐ ever, both have failed to
account for gender diversity.5

In addition, the path to the Supreme Court appears to have narrowed – typically those who are
appointed as judges by the collegium spend longer periods in private practice and on the bench
than pre-collegium judges.

The reform of the collegium system ought to be based on the following five principles, each of
which need to be taken into account, while reimagining a new process for appointment of judges.
(a) Transparency: The most persuasive criticism of the collegium system has been the fact that
appointment of judges has been secretive with no information available to anybody outside the
collegium about the process leading to the appointment of judges. Any effort to reform the existing
system should recognise the need for transparency in every stage of the appointment process.
Without a transparent process of the appointment of judges, the collegium system will not have
the credibility and the legitimacy for it to be accepted by all stakeholders within the legal system.
Transparency will not be established merely by stating that the members of the collegium will act
in a transparent manner. It will have to be demonstrated by the process that the judiciary adopts in
the selection of judges. (b) Diversity: The future of the collegium system and its credibility will
depend upon the steps that it takes to infuse diversity and establish it as a norm and practice for
the appointment of judges. The lack of gender diversity in the higher judiciary in India is a matter
of critical concern and deserves urgent attention. It took 37 years for the Supreme Court to appoint
its first woman judge. The next 25 years was followed by the appointment of four judges to the
Supreme Court and for the first time in its institutional history, there were two women judges
serving in the Court a few years ago. In a reply to a question that was raised in Parliament a few
years ago, it was observed by the Ministry of Women and Child Development that the information
provided by the Department of Justice, Ministry of Law, indicated that as of 10 July 2009, out of
a total 649 judges in the Supreme Court and High Courts, there were 51 female judges. This
represents a meagre 8% of the judges in the High Courts and Supreme Court who are women. It is

5
Article 124, https://blog.ipleaders.in/judiciary/.

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not enough to assume that any transparent process will lead to the appointment of meritorious
women as judges in the higher judiciary. The following five-step process should be initiated with
a view to promoting gender diversity within the higher judiciary in India: (i) The existing judicial
collegium should have at least one-woman judge (regardless of seniority) who will be involved in
all decisions for the appointment of judges to the High Courts and the Supreme Court. (ii) Tangible
efforts need to be taken for the promotion of existing women judges in the high courts to be chief
justices of other high courts that can fast-track the process of consideration so that they can be
appointed to the Supreme Court in the years to come. (iii) The existing practice of examining the
candidature of judges for appointment as judges of high courts or elevation to the Supreme Court
only after attaining a particular age needs to be reconsidered so that more women lawyers could
be appointed as judges of the high court’s sooner than later so that they have greater opportunity
to serve in the Supreme Court in the years to come. (iv) The cji may consider constituting a "Task
Force for Promoting Gender Diversity in Higher Judiciary" with at least 50% of its members as
women judges, lawyers and academics to make proposals that will lead to the evolution of a gender
diverse higher judiciary in India, (v) Law schools across the country should take efforts to create
a more gender diverse student body and faculty inspiring more women law students to seek careers
in the judiciary.

(c) Competence: The competence of individuals to be appointed as judges needs to be clearly

established. This is a very critical and central aspect of transparency. While the subjectivity in any
aspect of selection is indeed inescapable, this should not discourage us from establishing certain
threshold standards that will be taken into ac- count for measuring competencies. In fact, in this
day and age when every exercise of power by every authority is subject to the test of arbitrariness,
there is no reason why the judiciary as an institution should be also imposing on itself a high
standard to avoid any criticism of arbitrary exercise of powers. One of the ways by which the risk
of the arbitrary exercise of powers in the process of the appointment of judges is in relation to the
determination of criteria for selection. There are a number of measurable standards that could be
evolved for determining competencies for assessing the suitability of individuals to be appointed
as judges.

(d) Integrity: One of the most significant aspects of the judiciary as an institution is the bedrock of
unimpeachable integrity that is expected out of judges. While it is essential that all public

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authorities are persons of integrity and rectitude, the public expectation when it comes to judges
surpasses all other institutions. This means that integrity be- comes a significant aspect to be
evaluated in the selection process for the appointment of judges. The collegium system is well
suited to determine whether the candidate under consideration would fulfil the criteria of
unimpeachable integrity. The strength of judiciary as an institution is the fact that it is the guardian
of the Constitution. It is the only authority that is vested with both the power to interpret the
Constitution and to determine whether all institutions have acted in consonance with the
Constitution. These are extraordinary powers and, hence, the responsibility of the collegium
becomes higher and sacrosanct while selecting individuals who will be responsible to exercise
these extraordinary powers.

(e) Conflict of Interest: The issue of conflict of interest needs to be thoroughly established in the
process of selection of judges. The collegium has been fraught with serious allegations of different
types of alleged conflict of interest among the members of the collegium and the individuals they
have selected to become judges of the High Courts and the Supreme Court. There is an urgent need
for the collegium to formulate a detailed set of rules and regulations that will govern the
determination of conflict of interest among the members of the collegium who are involved in the
selection of judges. For example, some of the issues that have come to the forefront in determining
a potential conflict of interest could be: Whether judges from a particular high court or state should
be involved in the selection of other judges from that state or high court. If so, what precautionary
steps will be taken by the collegium to avoid or prevent biases, prejudices or other forms of
preferences based on friendship or familiarity in the selection of judges. Another issue of conflict
of interest could be to what extent lawyers who have worked as juniors in particular chambers who
have become judges in later years could be involved in the selection of juniors from those lawyers'
chambers to be selected as judge.

While recognizing the above principles, the process of the selection of judges by the collegium
should cover the following with a view to significantly transforming the existing mode of
appointment of judges. This mechanism may include: (a) Criteria for Selection of Judges: The first
step in the reform of the collegium system is about formulating a detailed set of criteria for the
selection of judges. A noted scholar has quite rightly observed: Between 1950 and 2009, 189
judges (including 37 chief justices) served on the Supreme Court of India. Not enough is known

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about who these judges were, and the criteria that were used to select them for the court. The Indian
Constitution formally provides that three type of individuals can be appointed to the Supreme
Court: (a) high court judges of five years' standing, (b) high court lawyers of 10 years' standing,
or (c) 'distinguished jurist', that is law professors or others. How- ever, this says very little, perhaps
nothing, about the kind of candidates that are appointed to the Court. In fact, the need to re-examine
the criteria for selection of judges become even more significant at this point of time as institutional
transformation is possible when there is a challenge to the status quo. This is indeed such a moment
for the judiciary.

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 CONCLUSION
The standstill between the judiciary and executive regarding the judicial appointments is still there
and it is hard to remove that deadlock. The interference and interruption in the work of another
person will always lead to the frustration and disregardness6. Similarly, obstructions in the way of
judicial functions by the executive will degrade the system of judicial appointments one day.
No system is perfect and nobody can be perfect. There are always certain discrepancies existed in
every field of study and research as well as in every administration. All over the world, judiciary
was commonly targeted by the executive whether it was United States, United Kingdom, South
Africa, India and the above stated countries in the chapter of global perspective related to the
judicial appointments. Slowly and gradually, judiciary itself took the initiatives all over the world
and got the independence from the executive but there are certain countries where still the primacy
of the Parliament exists. The same has happened in the case of India where the judiciary took away
the powers from the executive because of the over exercisable of powers, abuse of powers, misuse
of powers and to narrow down and curtail the role of judiciary in independent India. Undoubtedly,
there are certain loopholes in the present system of judicial appointments but it does not mean that
we should totally side-line the 20 years long practice. Though Judiciary evolved many new
principles of interpretations and changed its approach from political centric to social centric, it can
be said to self-centered, self-proclaimed and self-praised authority for managing its appointments.
The collegium system might give the independence of judiciary where there is no encroachment
of the executive in the matter of judicial appointments in higher judiciary, however, lacks
transparency, accountability, diversification to deal with the judicial appointments. The secrecy in
the matter of judicial appointments is degrading the integrity of the judiciary which is necessary
to be stopped as soon as possible. Hence, to remove the darkness in the system, we need a guiding
torch that can lead the procedure to a fair one and can eradicate the grey areas in the existing
framework of the judicial appointments.

6
JUDICIAL INDEPENDENCE AND ACCOUNTABILITY: SPECIAL REFERENCE TO INDIAN JUDICIAL
APPOINTMENTS, 2017 8 MLJ 1.

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