What is Collegium System?

The Supreme Court has invalidated the 99th Constitutional Amendment and National Judicial Appointments Commission (NJAC) Act passed by both Houses of Parliament and ratified by 20 states.

A five-judge Constitution Bench led by Justice J S Khehar held both the 99th Amendment Act and the consequent NJAC Act to be bad in law and ordered the revival of the Collegium System, which was being sought to be replaced by the NJAC.

Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary.

The CJI is to be consulted in all appointments, except his or her own. Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state.

The Chief Justice of the High Court concerned too should be consulted. But how did the Collegium System come about? The collegium system has its genesis in, and continued basis resting on, three of its own judgments which are collectively known as the Three Judges Cases.

The three cases are: S. P. Gupta v. Union of India - 1981 (also known as the Judges' Transfer case); Supreme Court Advocates-on Record Association vs Union of India – 1993; and 3. In re Special Reference 1 of 1998.

Over the course of the three cases, the court evolved the principle of judicial independence to mean that no other branch of the state - including the legislature and the executive - would have any say in the appointment of judges. The court then created the collegium system, which has been in use since the judgment in the Second Judges Case was issued in 1993.

There is no mention of the collegium either in the original Constitution of India or in successive amendments. The Third Judges Case of 1998 is not a case but an opinion delivered by the Supreme Court of India responding to a question of law regarding the collegium system, raised by then President of India K R Narayanan, in July 1998 under his constitutional powers.

Further, in January 2013, the court dismissed as without locus standi, a public interest litigation filed by NGO Suraz India Trust that sought to challenge the collegium system of appointment. A judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of "primacy" of the highest judiciary over the executive.

In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term "consultation" really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. 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. It cemented the supremacy of the judiciary in the appointment and transfer of judges.