Despite the Constitution’s omission of the Collegium system, it has developed as a result of the Supreme Court’s own three decisions, collectively known as the Three Judges Cases.
The conflict between the Centre & Supreme Court
The ongoing conflict between the Centre and the Supreme Court Collegium over who would serve as a judge on the Supreme Court and in the high courts has once again attracted attention to the selection of judges in India and other developed nations.
One could argue that the Collegium was a direct result of the disagreements between the executive and the judicial branches. Although the Collegium system is not mentioned in the Indian Constitution, it has developed as a result of three decisions by the Supreme Court, collectively known as the Three Judges Cases (1981, 1993 and 1998).
Although the President of India is the nominal appointing authority, decisions on appointments and transfers of judges in the higher courts have been made since 1993 via the Collegium system developed by the Supreme Court.
The procedure of appointment of Supreme Court Judges
The Constitution’s Article 124(2) outlines the selection procedure for judges in the higher courts. According to the Constitution, “Every Judge of the Supreme Court shall be appointed by the President, 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 65 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.”
Under the Collegium system, the President receives recommendations for individuals to be appointed as SC and HC justices from the Chief Justice of India and his four senior-most colleagues.
Characteristics of Collegium System
Instead of five judges, the Collegium currently has six. This is so because none of the four judges with the most seniority will be the CJI after them, and the CJI after them must be a member of the Collegium.
In light of this, Justice Sanjiv Khanna, who is now the sixth member of the Collegium, would succeed Chief Justice DY Chandrachud as the next CJI.
The Chief Justice of India and the two judges with the most seniority make up the solely three-judge Supreme Court Collegium, which approves appointments to the high courts. The Collegium, which now consists of six members, is comprised of five judges for appointments to the Supreme Court.
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