What is the collegium? How does it work?
These appointments could be in the form of elevation when High Court judges are appointed to the Supreme Court or direct appointments when experienced lawyers may be directly appointed as Supreme Court judges. The retiring CJI UU Lalit was a direct appointee.
Like the Supreme Court, High Courts also have a collegium. The chief justice of the court heads them. Two other seniormost judges are part of the HC collegium.
According to Article 124 of the Constitution of India, the appointment of Supreme Court judges 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 their own.
Where did the collegium system come from?
The system finds its origins in the three cases called the “Judges cases” in India.
In the 1981 SP Gupta case, also called the “first judges case”, the judges suggested that the executive must have the biggest say in judicial appointments.
12 years later, in 1993, a nine-judge bench in the “second judges case” said that the CJI must be given priority in such appointments.
This was reiterated in the “third judges case” in 1998. Since then, the judges have been appointed by the collegium system.
The Centre, however, has not supported the collegium system. According to the government, the current system is not transparent and is to blame for the high number of vacancies in the higher judiciary.
In 2014, the National Judicial Appointments Commission (NJAC) Act was brought in by the NDA government, which would have accorded a major role to the executive in appointing judges to the higher judiciary.
But it was struck down by the Supreme Court in 2015, continuing the current Collegium system of judicial appointments. A five-judge bench ruled against NJAC with a four-to-one split. It said the NJAC was against the basic structure of the Constitution.
How do other countries appoint SC judges?
In the USA, judges of the Federal Court are appointed by the President with the advice and consent of the Senate. There is no set retirement age for judges in the US. They continue to hold the office during “good behaviour”.
In the UK, an independent commission called the Judicial Appointments Commission (JAC) looks after the process of judicial appointments. It has 15 members. Three of these are judges, while 12 are selected through open competition.
South Africa has a similar 23-member Judicial Services Commission that advises the President to nominate the judges.
In almost all Latin American countries like Argentina and Brazil, the President nominates the judges subject to the approval of the respective Senates.