The recent appointment of Shri Sanjiv Khanna and Dinesh Maheshwari to Supreme Court has created controversy regarding the Judicial Appointment through Collegium System. Do you think Collegium System needs an urgent relook?
Context of the Question Shri Sanjiv Khanna and Dinesh Maheshwari were appointed to the Supreme Court bypassing 32 judges in the seniority list.
Origin of the Collegium System • Article 124 of the Indian Constitution says that the Judges of Supreme Court and High Court can be appointed by the President in “consultation” with as many Judges as he feels so. • But in Advocate on Record Vs. Union of India Case (1993) Supreme Court said that Consultation means concurrence and brought down the concept of Collegium System.
What is Collegium System? The Supreme Court Collegium is headed by the Chief Justice of India and comprises four other senior most judges of the court. A High Court Collegium is led by its Chief Justice and four other seniormost judges of that court. Names recommended for appointment by a High Court Collegium reaches the government only after approval by the CJI and the Supreme Court Collegium.
Can President Reject the Decision of Collegium? No, the President cannot reject the recommendation of Collegium, at most he can ask the Collegium to rethink, but if the Collegium again sends the same recommendation he has to abide by that.
Arguments against the Collegium System 1. There is no provision of the Collegium system in the Indian Constitution; it is the invention of Judiciary, so this action of the Judiciary amounts to Amendment to the Constitution which is the domain of the parliament and not the judiciary. 2. No one knows how the judges are appointed. The basis of appointment is often questioned and hence it is considered to be a system that lacks transparency. 3. Collegium System was made citing that it will fasten the process of judicial appointments but still 25% of the judicial posts are vacant. Therefore, it can clearly be said that the Collegium System has failed in its purpose. 4. It is alleged that the Collegium System promotes nepotism (Bhai-Bhatijawaad Concept In Hindi) as in this case Shri Sanjiv Khanna is the nephew of Shri H.R,Khanna.
Arguments in favour of Collegium In the collegium system, Judges appoints the Judges. If the Executive will appoint the Judges then it is a human tendency that the person will not try to injure the person who has helped them (Government in this case); but the fact of the matter is Government is the biggest litigant in this judicial process and so it will be a compromise on the independence of Judiciary Example: In the AADHAR case, if the Judges would have been appointed by the Executive they could have accepted all the provisions of the Government but they accepted only selective provisions of the Government.
Way forward The Collegium System can be revamped if it is made clear that on what ground the judges are selected or rejected or else the minute decisions of the Collegium shall be put on the website. This will restore the faith in the Collegium System and will usher an era of transparency.