Collegium System as we all know today is a system evolved for appointment & transfer of judges at the High Court and the Supreme Court of India. Over the last four and a half decades i.e. in the aftermath of emergency, there has been immense litigation & deliberations on this topic which makes it imperative to delve into the issue.

The whole debate revolves around these two articles of the constitution – Article 124, which provides for “Establishment & Constitution of Supreme Court” whereas Article 217, providing for “Appointment & Conditions of the Office of a Judge of a High Court”.

1977 Union of India vs. Sankalchand Himmatlal Sheth (5 Judges Bench 3:2)

The respondent being a Gujarat HC judge had challenged the notification for his transfer to the Andhra Pradesh HC on various grounds. Article 222 (which is similarly worded like Article 124 & 217) provides for the transfer of an HC judge and has wordings “President may, after consultation with the Chief Justice of India”. The SC held that the word “Consultation” does not mean “Concurrence” and the executive (i.e. UoI) has a final say in the appointment and transfer of judges.

1981 S. P. Gupta vs Union of India [Judges Transfer Case / 1st Judges Case] (7 Judges Bench 4:3)

The petitioner being an advocate had challenged the decision of not extending the terms of Additional Judges in Allahabad HC. This was merged with several other issues which were challenged at different High Courts such as transfer of Chief Justice of Patna HC to Madras HC etc.

The SC upheld the Sankalchand Sheth (1977) decision and again gave primacy to the executive over judiciary while interpreting the word “Consultation”. It was held that in the appointment of a Judge of a SC and HC, the word “Consultation” in Article 124(2) and Article 217(1) does not mean “Concurrence”. In case of any disagreement, the ultimate say would be with the executive (UoI) and not the Chief Justice of India.

However, Justice P. N. Bhagwati in his dissenting judgement had rightly suggested for a collegium system as we have it today. Hence, this was the case wherein a need for a collegium system was sensed for the first time.

1990 – 67th Constitutional Amendment Bill was proposed in the parliament for amending Article 124(2) and 217(1) thereby establishing National Judicial Commission (NJC). However, the bill lapsed due to dissolution of the 9th Lok Sabha.

1993 Supreme Court Advocate on Record Association (SCAOR) & another vs. Union of India4 [2nd Judges Case] (9 Judges Bench 7:2)

This case was decided by a 9 judge bench because a 3 judge bench in Subhash Sharma vs Union of India5 made a reference to reconsider the S. P. Gupta decision by a larger bench. This case came up as a consequence of a Writ Petition (PIL) filed for directing the executive to fill up vacancies in the higher judiciary.

One of the issues before the bench was – whether opinion of the CJI has primacy in appointment of judges in SC/HC and transfer of HC judges?

Here, the SC while overruling the S. P. Gupta decision held that –

• The opinion of CJI must be given primacy to minimize the executive influence in the judicial functions;
• CJI‟s recommendation formed after taking into consideration the opinion of 2 senior-most judges of the SC must be given largest importance;
• The word “Consultation” to be construed as “Concurrence”.
• Initiation of appointment for a SC and HC judge must be through a proposal by the CJI or CJ of HC respectively & similar procedure to be adopted for the transfer of a judge (& such transfer cannot be challenged before the courts).

Hence, this decision strengthened the judiciary by mandating a collegium system for the first time.

1998 In re Special Reference 1 of 19986 [3rd Judges Case] (9 Judges Bench)

Pursuant to his powers under Article 143(1) of the Constitution, the President asked SC of its opinion on the –

i) Working of the collegium system;
ii) Meaning of the word “Consultation” under Articles 124, 217 & 222; and
iii) Whether consultation requires consultation with a number of judges in forming CJI‟s opinion, or whether the sole opinion of CJI was sufficient?

SC strengthened the 2nd Judges Case & laid down detailed guidelines for the functioning of Coram for appointments/transfers. In brief, SC held that –

• Consultation does not mean sole opinion of the CJI but plurality of judges including the CJI;
• Increased the Collegium size to Chief Justice of India + 4 senior-most judges.

1999 – UoI framed a detailed Memorandum of Procedure (MoP) for appointment/transfer of Judges of SC/HC in consonance with the 2nd and 3rd Judges Case.

2003 – 98th Constitutional Amendment Bill was introduced to establish the National Judicial Commission on the recommendation of M. N. Venkatachaliah Commission report. However, it again got lapsed due to dissolution of the 13th Lok Sabha7.

2013 – For the third time, the executive tried to suppress judicial voice by introducing 120th Constitutional Amendment Bill for establishing a Judicial Appointments Commission (JAC) but failed due to dissolution of the Lok Sabha8.

2014 – This time, Parliament succeeded in passing the Constitutional (99th Amendment) Act which replaced the Collegium System with a National Judicial Appointments Commission (through NJAC Act, 2014) which would comprise of 6 members:

• CJI as the Chairperson;
• 2 senior-most judges after the CJI;
• Union Minister for Law & Justice;
• 2 eminent personalities [to be nominated by a committee consisting of the CJI, Prime Minister, Leader of Opposition/single largest party].

2015 Supreme Court Advocate on Record Association (SCAOR) vs. Union of India [4th Judges Case] (5 Judges Bench 4:1)

99th Constitutional Amendment and the NJAC Act, 2014 were challenged on the grounds of violation of Basic Structure of the Constitution and the independence of judiciary. SC held that –

• The 99th Amendment, as well as NJAC Act, is “Null and Void” as it violates the principles of “Separation of Powers” and “Independence of Judiciary”.
• The 2nd and 3rd Judges cases are not required to be reconsidered by a larger bench.
• Restored the Collegium System and struck down Articles 124, 124A – C, 127-128, 217, 222, 224, 224A, 231 as inserted/amended through the amendment.

2017 – Again, a draft Memorandum of Procedure (MoP) was prepared by the same 5 Judge Collegium in consonance with the 4th Judges Case (2015). It was sent to the Union of India for finalization but it was sent back to the Supreme Court in 2017 for improvements and is still pending with the SC.

It may not be wrong to conclude that the Collegium has stood the test of time ever since the S. P. Gupta judgment. The power of the executive over the judiciary has been kept in check by the apex court and the Collegium is working with minimal executive interference. At the same time, there are certain anomalies which may be corrected by an independent and an impeccable judiciary, thereby simultaneously acting as a watchdog & conservator of the best democratic principles.

Author: Nishu Vora, Gujarat National Law University