8/9/2019 Collegium System

1/3

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.

What does the Constitution actually prescribe?

Article 12 deals with the appointment of Supreme Court judges. It says the appointment

should be made by the !resident after consultation with such judges of the "igh Courts and

the Supreme Court as the !resident may deem necessary. #he CJI is to be consulted in all

appointments$ e%cept his or her own.

Article 21& deals with the appointment of "igh Court judges. It says a judge should be

appointed by the !resident after consultation with the CJI and the 'o(ernor of the state. #he

Chief Justice of the "igh Court concerned too should be consulted.

How and when did the other system evolve?

#he collegium system has its genesis in a series of three judgments that is now clubbed

together as the )#hree Judges Cases). #he S ! 'upta case *+ecember ,$ 1/10 is called the

)irst Judges Case). It declared that the )primacy) of the CJIs recommendation to the

!resident can be refused for )cogent reasons). #his brought a paradigm shift in fa(our of the

e%ecuti(e ha(ing primacy o(er the judiciary in judicial appointments for the ne%t 12 years.

How did the judiciary come to get primacy?

3n 3ctober 4$ 1,$ came a nine-judge bench decision in the Supreme Court Ad(ocates-on

5ecord Association (s 6nion of India case 7 the )Second Judges Case). #his was what

ushered in the collegium system. #he majority (erdict written by Justice J S 8erma said

)justiciability) and )primacy) re9uired that the CJI be gi(en the )primal) role in such

appointments. It o(erturned the S ! 'upta judgment$ saying )the role of the CJI is primal in

nature because this being a topic within the judicial family$ the e%ecuti(e cannot ha(e an

e9ual say in the matter. "ere the word consultation would shrin: in a mini form. Should the

e%ecuti(e ha(e an e9ual role and be in di(ergence of many a proposal$ germs of indiscipline

would grow in the judiciary.)

How final was this?

Justice 8ermas majority judgment saw dissent within the bench itself on the indi(idual role

of the CJI. In a total of fi(e judgments deli(ered in the Second Judges case$ Justice 8erma

spo:e for only himself and four other judges. Justice !andian and Justice ;uldip Singh went

on to write indi(idual judgments supporting the majority (iew.

8/9/2019 Collegium System

2/3

What was done to deal with the confusion?

In 1/$ !resident ; 5 =arayanan issued a presidential reference to the Supreme Court as to

what the term )consultation) really means in Articles 12$ 21& and 222 *transfer of "C

judges0 of the Constitution. #he 9uestion was if the term )consultation) re9uires consultation

with a number of judges in forming the CJIs opinion$ or whether the sole opinion of the CJIconstituted the meaning of the articles. In reply$ the Supreme Court laid down nine guidelines

for the functioning of the coram for appointments>transfers? this came to be the present form

of the collegium .

8/9/2019 Collegium System

3/3

1 #he term )consultation) with the Chief Justice of India in Articles 12 *20$ 21&*10 and 222

*10 re9uires consultation with a plurality of judges in the formation of the opinion of the CJI.

#he sole$ indi(idual opinion of the CJI does not constitute consultation.

2 #he CJI can only ma:e a recommendation to appoint a judge of the Supreme Court and to

transfer a Chief Justice or puisne judge of a "igh Court in consultation with the four senior-most judges of the Supreme Court. As far as the "igh Courts are concerned$ the

recommendation must be made in consultation with the two senior-most judges of the

Supreme Court.

, Strong cogent reasons do not ha(e to be recorded as justification for a departure from the

order of seniority in respect of each senior judge who has been passed o(er. Fhat has to be

recorded is the )positi(e reason for the recommendation).

#he (iews of the judges consulted should be in writing and should be con(eyed to the

'o(ernment of India by the CJI along with his (iews to the e%tent set out in the body of this

opinion.

G #he CJI is obliged to comply with the norms and the re9uirement of the consultation

process in ma:ing his recommendations.

4 5ecommendations by the CJI without Hsuch compliance are not binding upon the

go(ernment.

& #he transfer of "igh Court judges is judicially re(iewable only if the CJI too: the decision

without consulting the other four judges in the Supreme Court collegium$ or if the (iews of

the Chief Justices of both "igh Courts Hin(ol(ed in the transfer are not obtained.

/ #he CJI is not entitled to act solely in his indi(idual capacity$ without consultation with

other judges of the Supreme Court$ in respect of materials and information con(eyed by the

'o(ernment for non-appointment of a judge recommended for appointment.

#he CJI can consult any of his colleagues on the appointment of a "C judge to the Supreme

Court or transfer of a puisne judge. #he consultation need not be limited to colleagues who

ha(e occupied the office of a judge or Chief Justice of that particular "igh Court .