The Three Judges Cases and the Collegium system

The "Three Judges cases" in India refer to a series of three landmark cases that were decided by the Supreme Court of India and had a significant impact on the judicial appointment process in the country. These cases are:

1. S. P. Gupta v. Union of India (1981): This case, also known as the "First Judges case," was a challenge to the constitutionality of the provisions of the Constitution (Ninety-third Amendment) Act, which aimed to give the executive a greater role in the appointment of judges to the Supreme Court and the high courts. The Supreme Court struck down the amendment, holding that it violated the independence of the judiciary and the principle of separation of powers.
2. Supreme Court Advocates-on Record Association vs Union of India (1993): This case, also known as the "Second Judges case," arose from a presidential reference made to the Supreme Court seeking its opinion on the judicial appointments process. The Supreme Court held that the appointment of judges should be made through a process of consultation between the Chief Justice of India and the other senior judges of the Supreme Court and that the views of the Chief Justice should be given primacy. This decision led to the establishment of the collegium system for the appointment of judges in India.
3. In Re: Special Reference 2  (1998): This case, also known as the "Third Judges case," arose from another presidential reference seeking the Supreme Court's opinion on the appointment of judges. The Supreme Court upheld the collegium system that it had established in the Second Judges case, but made some modifications to the process, including the introduction of the concept of "national interest" as a consideration in the appointment of judges.

The collegium system, which was established as a result of the Second and Third Judges cases, is a process by which the Chief Justice of India and a group of senior judges of the Supreme Court (known as the "collegium") recommend candidates for appointment as judges to the Supreme Court and the high courts. The President of India then appoints the recommended candidates. The collegium system has been the subject of controversy and has been criticized for its lack of transparency and accountability.

Attempts to change the collegium system in India?

There have been several attempts to reform or replace the collegium system for the appointment of judges in India. Some of the key developments in this regard are:

1. National Judicial Appointments Commission (NJAC) Act, 2014: The NJAC Act was enacted by the Indian parliament in 2014 with the aim of replacing the collegium system with a new body called the National Judicial Appointments Commission (NJAC). The NJAC was to consist of the Chief Justice of India, two senior judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons to be nominated by a committee consisting of the Chief Justice of India, the Prime Minister, and the Leader of the Opposition in the Lok Sabha (the lower house of the Indian parliament). The NJAC was to have the power to recommend candidates for appointment as judges to the Supreme Court and the high courts.
2. Constitution (Ninety-ninth Amendment) Act, 2014: The Ninety-ninth Amendment Act was enacted along with the NJAC Act and sought to give legal backing to the NJAC by amending the Constitution of India.
3. Supreme Court Advocates-on-Record Association v. Union of India (2015): The Supreme Court struck down the NJAC Act and the Ninety-ninth Amendment Act, holding that they violated the independence of the judiciary and the principle of separation of powers. The court ruled that the collegium system for the appointment of judges would continue, but made some modifications to the process, including the introduction of a "secretariat" to assist the collegium in its functioning and the requirement for the collegium to provide reasons for its recommendations.
4. The National Law University, Delhi (NLU Delhi) Act, 2018: The NLU Delhi Act amended the NJAC Act and provided for the establishment of a National Law University in Delhi. The Act also provided for the establishment of a National Judicial Appointments Commission (NJAC) to recommend candidates for appointment as judges to the Supreme Court and the high courts. The NJAC was to consist of the Chief Justice of India, two senior judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons to be nominated by a committee consisting of the Chief Justice of India, the Prime Minister, and the Leader of the Opposition in the Lok Sabha. However, the NJAC provisions of the NLU Delhi Act have not been implemented.

How are judges appointed in the USA, UK, Canada, Australia, New Zealand, Germany, France, Spain, and Italy?

The process for appointing judges varies among different countries, but some general principles are common to many jurisdictions. Here is a brief overview of the appointment of judges in some selected countries:

1. United States: In the United States, the appointment of federal judges, including Supreme Court justices, is made by the President with the advice and consent of the Senate. The President nominates a candidate for a judicial vacancy, and the Senate Judiciary Committee holds hearings to consider the nomination. If the Committee approves the nomination, it is sent to the full Senate for a vote. If a majority of the Senate votes in favor of the nomination, the candidate is confirmed as a judge.
2. United Kingdom: In the United Kingdom, the appointment of judges is the responsibility of the Judicial Appointments Commission (JAC). The JAC is an independent body that is responsible for selecting candidates for appointment as judges to the courts of England and Wales, as well as to some tribunals. The JAC conducts a competitive recruitment process and makes recommendations to the Lord Chancellor, who makes the final decision on the appointment of judges.
3. Canada: In Canada, the appointment of judges to the federal courts, including the Supreme Court of Canada, is made by the Governor General on the recommendation of the federal Cabinet. The Cabinet receives recommendations from a judicial advisory committee, which is composed of legal experts and is responsible for reviewing the qualifications of candidates and making recommendations to the Cabinet.
4. Australia: In Australia, the appointment of federal judges, including judges of the High Court of Australia, is made by the Governor-General on the recommendation of the federal Attorney-General. The Attorney-General receives recommendations from a judicial appointments advisory committee, which is composed of legal experts and is responsible for reviewing the qualifications of candidates and making recommendations to the Attorney-General.
5. New Zealand: In New Zealand, the appointment of judges to the High Court and the Court of Appeal is made by the Governor-General on the recommendation of the Attorney-General. The Attorney-General receives recommendations from a judicial appointments panel, which is composed of legal experts and is responsible for reviewing the qualifications of candidates and making recommendations to the Attorney-General.
6. Germany: In Germany, the appointment of judges is the responsibility of the executive branch of government, with the final decision being made by the Federal President. The Federal President appoints judges on the recommendation of the Federal Minister of Justice, who receives recommendations from a judicial appointments committee.
7. France: In France, the appointment of judges is the responsibility of the executive branch of government, with the final decision being made by the President. The President appoints judges on the recommendation of the Minister of Justice, who receives recommendations from a judicial appointments commission.
8. Spain: In Spain, the appointment of judges is the responsibility of the executive branch of government, with the final decision being made by the King. The King appoints judges on the recommendation of the Council of Ministers, which receives recommendations from a judicial appointments commission.
9. Italy: In Italy, the appointment of judges is the responsibility of the executive branch of government, with the final decision being made by the President of the Republic. The President appoints judges on the recommendation of the Minister of Justice, who receives recommendations from a judicial appointments commission.

As is obvious, the one thing consistent in all the countries where the British Common Law is prevalent is that the executive branch has the power and the responsibility for Judicial appointments.

How can the collegium system be changed?

The collegium system for the appointment of judges in India has been the subject of controversy and has been criticized for its lack of transparency and accountability. There have been several attempts to reform or replace the collegium system, but none of these attempts have been successful so far.

The collegium system is established by the Constitution of India and can only be changed by amending the Constitution. To amend the Constitution, the proposal must be passed by a special majority of both houses of parliament (that is, a majority of the total membership of each house, and a two-thirds majority of the members present and voting). The proposal must then be ratified by the legislatures of at least half of the states. This is a complex and time-consuming process, and it is not easy to amend the Constitution.

One way in which the collegium system could be reformed is by introducing greater transparency and accountability into the process of judicial appointments. This could be achieved by, for example, making the criteria for the selection of judges more explicit, or by requiring the collegium to provide reasons for its recommendations. Another option could be to establish an independent body, such as a judicial appointments commission, to advise the collegium on the selection of candidates for appointment as judges.

It is also worth noting that the collegium system is not the only model for the appointment of judges. Other countries have different systems, such as the appointment of judges by an independent body or through a process of consultation between the executive and the judiciary. If the Indian government and the judiciary were to consider alternatives to the collegium system, they could consider the successes and challenges of these other models and adopt elements that are suitable for the Indian context.

Views of Critics and Backers of the Collegium System

The collegium system for the appointment of judges in India has been the subject of much debate and has attracted criticism and support from different experts.

Critics of the collegium system argue that it lacks transparency and accountability and that it is prone to being influenced by extraneous factors such as political considerations or personal relationships. Some experts have also argued that the system does not adequately ensure the appointment of the most qualified candidates and that it does not provide for adequate representation of marginalized groups.

Supporters of the collegium system argue that it ensures the independence of the judiciary and protects it from undue executive interference. They also argue that the system has served India well and that it has ensured the appointment of competent and independent judges.

Overall, the opinions of different experts on the collegium system are varied and depend on their perspectives and priorities. While some experts may view the system as an important safeguard for the independence of the judiciary, others may see it as a flawed and opaque system that needs reform.

If you like our content and value the work that we are doing, please do consider contributing to our expenses.  CHOOSE THE USD EQUIVALENT AMOUNT you are comfortable with.

If you like this post - please share it with someone who will appreciate the information shared in this edition.

Today’s ONLINE PAPER: Check out today’s “The Drishtikone Daily” edition. - THE DRISHTIKONE DAILY