If Not Collegium Then What Else?
- IJLLR Journal
- Sep 26
- 2 min read
Atharva Gajanan Jakkalwar, Maharashtra National Law University, Mumbai
Recent speeches delivered by the Hon’ble CJI B R Gavai and SC Judge Suryakant regarding the most censored part about Indian Judicial system, Collegium. Numerous debates have sparked in various spectrums of media, arguing the merits and demerits of collegium. From politicians to bureaucrats to the very lay person it has become talk of the town. For every partisan and functionary outside judiciary this topic is not less than a punching bag, discussing, arguing and analysing credits to drop in their bag of political favouritism. In this match of competency, collegium has become the ball which is kicked and chased by all the stakeholders of state. Some months back the then law minister Kiren Rijiju made a public statement the saying, “...collegium is opaque, Govt can’t be silent forever...” criticising the collegium system where India being the alone nation around the globe where judges appoint judges.
Evolution of collegium all started with the First Judges case1 of 1981, the circular sent to various chief ministers of states regarding the appointment of additional judges was challenged before the Supreme Court by an advocate form Allahabad S P Gupta. This case was heard by a 7-judge bench lead by CJI P N Bhagwati, passing the verdict by 4:3 ratio, where primacy to the executive’s decision was given on the reasoning of that “Consultation” in Articles 124(2) and 217(1) didn’t mean “concurrence” thus the opinion of chief justice was never bidding over the executive. In this system the consultation with CJI and Chief Justice of respective High court was merely a formality due to the constitutional obligation, this created a scenario where it hammered Article 50, independence of judiciary from other 2 organs of democracy. These all unanswered questions lead to the Second Judges case, this case overturned the earlier judgement and made severe changes in the procedure of appointment of judges. This case laid the foundation stone for the Collegium. This case was heard by a 9-judge bench of Supreme Court headed by the then CJI J S Verma, where it was held that the opinion of CJI will be considered of primacy and no recommendation would be considered valid unless the primacy to CJI’s opinion is given. This was the first instance where the thought of collegium was born, it was held in this case that CJI cannot individually give opinion on appointment and transfer of judges, his opinion should be backed by the opinion of 2 senior most judges of Supreme Court. Overruling the previous verdict SC held that Consultation means Concurrence under Articles 124(2) and 217(1). This case surely laid the base for collegium but still there were many questions unanswered and the proportion of ambiguity brainstormed the government machineries over appointment and transfer of judges. Due this puzzling situation, in 1998 President by exercising his powers under Article 143, sought advice of the SC over this issue clarifying the ambiguous parts of the Second Judges case. Supreme Court by widening the scope of consultation gave it a multidimensional touch stating that plurality of judges and their opinion should lead to the opinion construction of CJI which would eventually be sent to the executive on whose aid and advise the President would make the appointment. Establishing the criteria:
