Principle of seniority and ‘5+1’ collegium

  • October 12, 2022
  • Posted by: OptimizeIAS Team
  • Category: DPN Topics
No Comments

 

 

Principle of seniority and ‘5+1’ collegium

Subject :Polity

Context;-

  • Chief Justice of India U U Lalit has recommended Justice D Y Chandrachud as his successor to the post.
  • Justice D Y Chandrachud will take over as the next CJI on November9
  • During his two year tenure as CJI the collegium will consist of six members instead of five.

What is the collegium system:

  • The ruling in theThird Judges Case,gave legal backing to the current system of appointment of judges and created the collegium of the CJI and four senior-most judges.
  • The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court Bench.
  • The collegium system is not rooted in the Constitution or a specific law promulgated by Parliament.
  • The SC collegium is headed by the incumbent CJI and comprises the four other senior most judges of the court at that time.

What the Constitution says:-

  • 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.
  • For appointments other than the Chief Justice, “the Chief Justice of India shall always be consulted”.

Evolution of the system-

  • The collegium system evolved out of a series of judgments of the Supreme Court that are called the “Judges Cases”.
  • FIRST JUDGES CASE:
    • In SP Gupta vs Union of India, 1981, the Supreme Court held that the concept of primacy of the CJI was not really rooted in the Constitution.
    • The Constitution Bench also held that the term “consultation” used in Articles124 and 217 did not mean “concurrence” .
    • Therefore  though the President will consult these functionaries, his decision doesn’t have to concur with them.
    • This judgment tilted the balance of power in favour of the executive.
  • SECOND JUDGES CASE:
    • In The Supreme Court Advocates-on-Record Association vs Union of India, 1993, a nine-judge Constitution Bench overturned the decision in SP Gupta, and devised a specific procedure called the ‘CollegiumSystem’. 
    • The verdict in the case accorded primacy to the CJI in appointment and transfers, and ruled that the term “consultation” would not diminish the primary role of the CJI.
    • The verdict said that the recommendation should be made by the CJI in consultation with his two senior most colleagues.
    • It added that although the executive could ask the collegium to reconsider the matter, if the collegium reiterated the recommendation, the executive was bound to make the appointment. 
  • THIRD JUDGES CASE:
    • In 1998, then President K R Narayanan issued a Presidential Reference to the Supreme Court under Article 143 of the Constitution over the meaning of the term “consultation”.
    • The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.
    • In response, the SC laid down nine guidelines which has come to be the existing form of the collegium.
    • The SC laid down that the recommendation should be made by the CJI and his four seniormost colleagues instead of two. 
    • It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.

Why is there 5+1 collegium:

  • 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
  • But if the situation is such that the successor Chief Justice is not one of the four senior most puisne Judges,then  he must invariably be made part of the collegium.
  • Since,the Judges to be appointed will function during his term and it is his right that he should have a hand in their selection.
  • 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.
  • Hence, Justice Khanna will be the sixth member of the collegium from November9,2022 itself.
  • The similar situation happened in 2007 when then CJI KG Balakrishnan took the top office,thecollegium he headed did not have the potential CJI candidate.

Justice SH Kapadia, who was next in line to be CJI, was invited to the collegium as the sixth member.

Polity Principle of seniority and ‘5+1’collegium