Context

• Chief Justice of India (CJI) U U Lalit has written to the government recommending his successor in the post, and as per the convention of seniority, Justice D Y Chandrachud will take over as the next CJI on November 9.

• During Justice Chandrachud’s two-year tenure, the collegium he will head will potentially make as many as 18 recommendations for appointment of judges to the Supreme Court.

• It will be an unusual collegium: instead of five members, it will have six.

What is the collegium?

• The collegium system of appointing judges evolved through three significant verdicts of the Supreme Court, known as the First, Second, and Third Judges Cases. The Constitution of India does not mention the collegium system; however, these three cases established that the collegium headed by the Chief Justice of India will have primacy in the appointment of judges to the higher judiciary.
• The Supreme Court collegium is headed by the CJI and comprises four other senior-most judges of the court. This collegium makes recommendations to the government for appointment of judges to the SC and of Chief Justices of High Courts, and the transfers of HC judges.
• A separate three-member collegium, headed by the CJI and comprising the two senior-most judges of the SC makes recommendations for appointment of judges to HCs.

What are the Judges Cases?

• First Judges Case: In S P Gupta v Union of India (1981), a seven-judge Bench gave the Executive the last word on the appointment of judges. Interpreting Articles 124(2) and 217(1) of the Constitution, which deal with the appointments of judges to the SC and the HCs respectively, the SC ruled that the government can disagree with the CJI for “cogent reasons”.
• Second Judges Case: In 1993, a nine-judge Bench examined the correctness of the 1981 verdict, and reversed it. The ruling held that the word “consultation” actually meant “concurrence” of the CJI. It also said that the CJI would make decisions along with two senior-most judges of the court, who would form the collegium.
• Third Judges Case: In 1998, a reference was made by then President K R Narayanan seeking the SC’s opinion in its advisory jurisdiction on whether the primacy given to the CJI on appointments was legally sound. The SC reiterated its decision of 1993, but brought more senior judges to the collegium, increasing its strength from three to five judges.

Who is in the collegium?

• The ruling in the Third Judges Case, which gave legal backing to the current system of appointment of judges and created the collegium of the CJI and four senior-most judges, stated: “The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court Bench.
• The Chief Justice of India and the senior-most puisne Judges, by reason of their long tenures on the Supreme Court, are best fitted to achieve this objective.”
• Generally, one or more of the four senior judges in the collegium would be a potential CJI candidate. The next in line is considered important to ensure continuity of decision-making. For example, Justice Chandrachud, the senior-most judge after CJI Lalit, is part of the current collegium.
• “Ordinarily, one of the four senior-most puisne Judges of the Supreme Court would succeed the Chief Justice of India, but if the situation should be such that the successor Chief Justice is not one of the four senior-most puisne Judges, he must invariably be made part of the collegium. The Judges to be appointed will function during his term and it is but right that he should have a hand in their selection,” the ruling stated.
• However, in the two-year tenure of Justice Chandrachud as CJI, a potential CJI candidate is unlikely to be in the collegium until May 2023.

What will the Chandrachud collegium look like?

• On November 9 when he takes over as CJI, Justice Chandrachud’s collegium will also include Justices Sanjay Kishan Kaul, Abdul Nazeer, K M Joseph and M R Shah.
• This combination will change on January 4, 2023 when Justice Nazeer retires. Then the collegium, apart from (then) CJI Chandrachud, will consist of Justices Kaul, Joseph, Shah, and Ajay Rastogi.
• On May 15, 2023, after Justice Shah retires, the collegium will have, besides (then) CJI Chandrachud, Justices Kaul, Joseph, Rastogi, and Sanjiv Khanna.
• Justice Khanna is likely to succeed Justice Chandrachud as CJI on November 11, 2024.

What is a 5+1 collegium?

• Given the order of seniority, a potential CJI will enter the Chandrachud collegium only in May 2023. However, Justice Khanna will be the sixth member of the collegium from November 9, 2022 itself.
• This happened earlier in 2007 — when then CJI K G Balakrishnan took the top office, the collegium he headed did not have a potential CJI candidate. Justice S H Kapadia, who was next in line to be CJI, was invited to the collegium as the sixth member.

Back to Basics

What does the Constitution say on the appointment of judges in the higher judiciary?

• Articles 124(2) and 217 of the Constitution deal with the appointment of judges to the Supreme Court and High Courts. The appointments are made by the President, who is required to hold consultations with “such of the judges of the Supreme Court and of the High Courts” as he may think is needed. But the Constitution does not lay down any process for making these appointments.
• Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
• Article 217 says: “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.”

On what grounds has the collegium system been criticised?

• Critics have pointed out that the system is non-transparent, since it does not involve any official mechanism or secretariat.
• It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria, or even the selection procedure.
• There is no public knowledge of how and when a collegium meets, and how it takes its decisions.
• There are no official minutes of collegium proceedings.
• Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.
• The collegium system of appointment and transfer of judges of the higher judiciary has been debated for long, and sometimes blamed for tussles between the judiciary and the executive, and the slow pace of judicial appointments.

Reference: Indian Express

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