Explained | The issues in the Collegium’s functioning
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Why did a meeting of the Collegium not take place? Should the body change the way it works?

October 16, 2022 01:38 am | Updated 10:06 am IST

The story so far: A meeting of the Supreme Court Collegium, comprising the Chief Justice of India (CJI), and four senior-most judges, which was called for September 30 but did not take place, was subsequently “closed without there being any further deliberation”. What prevented further deliberations was the fact that the Union Law Minister, by a letter dated October 7, requested Chief Justice U.U. Lalit to nominate his successor, as the latter’s tenure ends on November 8, 2022. The postponement of the meeting and its subsequent closure has invited attention to the manner in which the Collegium functions.

What is the work of the Collegium?

The Collegium system, one in which a group of the senior-most judges make appointments to the higher judiciary, has been in practice for nearly three decades. Its importance lies in the fact that its opinion has primacy in the matter of appointments to the high courts and the Supreme Court, as well as transfers. Its legal basis is found in a series of three judgments — usually referred to as the ‘Judges Cases’ — concerning the higher judiciary. Its manner of functioning has been laid down in the form of a ‘Memorandum of Procedure’.

The Constitution says a Supreme Court judge is appointed by the President in consultation with the Chief Justice of India. In the ‘First Judges Case’, the court held that the consultation with the CJI should be “full and effective”. The Second Judges case introduced the collegium system in 1993. It ruled that the CJI would have to consult a collegium of his two senior-most judges in the apex court on judicial appointments. The ‘Third Judges Case’ case in 1998, which was a Presidential reference, expanded the collegium to its present composition of the CJI and four of his senior-most judges.

How does it discharge its functions?

The Collegium’s functioning has been criticised for being opaque. Its resolutions and recommendations are hosted on the Supreme Court’s website, giving relevant information about its decisions. However, the nature of the deliberations and whether there are any internal differences of opinion on the suitability of a particular candidate are unknown. It functions mainly through the system of adopting resolutions and sending them to the Union Law Ministry for further action. If a proposal for appointment of a judge is returned for reconsideration, the Collegium may either drop it or reiterate it. When the Collegium reiterates its decision after reconsideration, it is binding on the government.

Why was the September 30 meeting closed without result?

The meeting had to be postponed because on that day, a member of the Collegium, Justice D.Y. Chandrachud, who will be the next Chief Justice of India, was preoccupied with his list of cases well beyond court hours. Subsequently, a difference of opinion has been acknowledged over the manner in which the deliberations were to go on. While Chief Justice Lalit wanted to circulate the files pertaining to some recommendations for appointment to the Supreme Court, two judges in the Collegium, Justice Chandrachud and Justice Abdul Nazeer, did not favour any decision through circulation. They preferred deliberations in person.

Also read | Need to rethink collegium system of appointment, suggests Law Minister Kiren Rijiju

Meanwhile, the Union Law Minister asked the Chief Justice to name his successor. By convention, once a recommendation for the successor to the CJI’s office is made, the Collegium ceases to make decisions. There is no law or rule that says the Collegium should become dysfunctional during the last month of a Chief Justice’s tenure, but it is observed as a matter of convention. It may also be a matter of propriety, as judges likely feel that the incoming CJI should have his say in initiating proposals for appointments to the Supreme Court.

What are the issues from this development?

Three questions may have arisen from the development. One is whether there ought to be a prescribed mode of decision-making, that is, through personal deliberations or by circulation or by adopting both means as per convenience. The second is whether all members of the Collegium give their opinions in writing, or whether they convey reservations, if any, orally. A related question that arises is whether all decisions ought to be unanimous and consensual. There is a view that a recommendation by majority, with one or two expressing reservations, may give a good reason for the executive to reject the recommendation or seek reconsideration. Also, the need for the Collegium not to hold any deliberations in the last month of a Chief Justice’s tenure is something to be debated. Given that the CJI is appointed by seniority, many of them have only a short tenure running into a few months. This convention may slow down decision-making.

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