The present collegium system which plays a primary role in the appointment of judges of supreme court is not mentioned anywhere in the constitution. It evolved through various judgements of the supreme court. Following are the relevant judgements of the SC regarding evolution of the collegium system-

First Judges Case (S.P. Gupta vs Union of India, 1982)

Consultation vs Concurrence in Evolution of Collegium System in India

This case is popularly known as the First Judges Case. In this case, the Supreme court declared that the word ‘consultation’ used in the context of article 124 does not imply ‘concurrence’ and only means exchange of views i.e. the opinion of the CJI in matters of appointment of SC judges is not binding on the President. The judgement of the SC gave primacy to the executive in the matters of appointment of judges to the supreme court.

Second Judges Case (Supreme Court Advocates-on-Record vs Union of India, 1993)

Consultation Means Concurrence in Evolution of Collegium System in India

This case is popularly known as the Second Judges Case. The nine judge bench of the Supreme Court by 7-2 majority overruled its earlier judgement in the first judges case and held that the ‘consultation’ meant ‘concurrence’ and advice tendered by the CJI is binding on the President. This judgement gave primacy to the opinion of the CJI in matters of appointment of the supreme court judges. However, it added that advice or opinion is not the CJI’s individual opinion, and the CJI must consult the two senior-most judges in the SC.

The supreme court laid down following important guidelines in this case-

• Appointment of CJI: The appointment to the office of the Chief Justice of India should be made on the basis of seniority, that is the senior most judge considered suitable to hold the office be appointed as the Chief Justice of India.
• Appointment of judges: The primacy was given to the opinion of the CJI in appointment of the judges but the CJI was required to consult two senior most judges of the Supreme court before giving an opinion to the president.
• The supreme court also said that the CJI and his two senior most colleagues must act collectively while giving their opinion to the President about appointments of judges in the supreme court.

Third Judges Case 1998 Clarification and Evolution of the Collegium System in India

The president using the power vested in him under article 143 of the constitution sought the supreme court’s clarification on the consultation process as laid down in the second judges case. The reply of the SC to the president in this matter is also called as the third judges case.

The Supreme court laid down following clarifications regarding appointments of judges in the supreme court-

• Sole opinion of the CJI: A nine-judge bench of the supreme court unanimously held that the sole opinion of the CJI without following the consultation with his colleagues is not binding on the President.
• Collegium system: 
  • The Supreme court held that the consultation process to be adopted by the CJI, in matters of appointment of judges to the SC, requires consultation of ‘plurality of judges’. 
  • In matters of appointment of judges to the SC, the CJI should consult a collegium of four senior most judges of the supreme court. 
  • The SC also made it clear that if two judges in the collegium give an adverse opinion about appointment of a person as a judge of the SC, the CJI should not send such recommendations to the government. 
  • The recommendations of the collegium should be based on the consensus and unless the opinion is in conformity with that of the CJI, no recommendation is to be made.

So, the Collegium system evolved to its present form in the third judges case. The CJI and four senior most judges of the Supreme Court forming the collegium have the exclusive power to recommend names of eligible persons for their appointment as judge in the supreme court.

Critical Evaluation of the Collegium System in India

The body comprising Chief Justice of India and four senior-most judges of the Supreme Court came is  known as Collegium. This five-member extra-constitutional body established by the supreme court makes recommendations for the appointment of judges in the supreme court. It should be noted that the composition of the collegium changes in relation to matters of appointment of judges in High Courts. In case of appointments of judges in high courts, the collegium consists of CJI and two senior most judges of the supreme court.

Criticism of Collegium system in India

As the collegium system has given primacy to the supreme court in appointments of judges in the higher judiciary, it is criticised by the political executive and various constitutional experts. Main points of criticism of the collegium system are as follows-

• Lack of transparency: The system is non-transparent since it does not involve any official mechanism or secretariat. The system is a closed-door affair with no clear-cut 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.
• Lack of Accountability: The collegium system is not accountable to any administrative body which may lead to the wrong choice of the candidate while overlooking the right candidate during the appointments. Some lawyers are of the opinion that such a closed system may lead to nepotism and favouritism.
• Violation of ‘Checks and Balances’: This system gives immense power to Judiciary in appointment of judges which is against the principle of checks and balances.
• Burden on Judges: There is a huge pendency of cases in the Courts and the judges are having limited time.  The responsibility of appointments would further lead to a  burden on the Judiciary.

Benefits and Evolution of the Collegium System in Judicial Appointments in India

Despite the criticism, the collegium system has ensured that appointments in the higher judiciary are free from undue interference of the executive. This system has also ensured independence of the judiciary which is paramount for protecting the supremacy of the constitution. Benefits of the collegium system can be summarised as follows-

• Judicial independence: It protects the judiciary from the influence of the executive and legislative through appointments and transfers. This ensures the proper regulation of the doctrine of separation of power. It also allows the judges to perform their duty without any fear or without interference and influence.
• Efficiency in the appointments: The executive does have the required expertise as compared to the collegium regarding the selection of candidates as a judge in the higher judiciary. The Collegium system ensures that the deserving and suitable candidates are appointed in the position of Judge in the Supreme Court.
• Secrecy as blessing in disguise: The secretive procedure adopted by the collegium helps in upholding the dignity and integrity of persons to be appointed as the judges in higher judiciary. Such procedure ensures free and effective functioning of the judges.

The present collegium system has ensured the independence of judiciary which is one of the basic features of our constitution. But the supreme court itself has stated that the collegium system can be improved to make it more inclusive and transparent.