QUE : Critically evaluate the merits and demerits of the method of selecting judges (collegium) in the appointment of judges.

Articles 124 (2) and 217 of the Constitution of India deal with the appointment of judges in the Supreme Court and High Courts. The collegium method used for the appointment of judges has always been a matter of debate.

•  Collegium Method :
  

•  First Judge Case (1981): It declared that consultation does not mean consensus in the appointment process.
  
•  Second Judge Case (1993): Consultation meant consensus, in which the CJI and two other senior Supreme Court judges were also included.
  
• Third Judge Case (1998): In this, the collegium was expanded to a five-person body. A collegium of the four senior-most judges was formed along with a Chief Justice.
  
•  Advantages of Collegium System:
  

•  Protection of Independence of Judiciary: It is necessary for the protection of integrity.
  
•  It is in line with the principle of separation of powers, which clearly defines the separation of powers between the three organs of democracy.
  
•  Protects the impartiality of the judiciary from interference by the executive.
  
•  Prevents the executive from exercising its power of appointment in the judiciary.
  
•  E.g. 1) Immediately after the Kesavanand Bharati case, A. N. Ray (who ruled in favour) was declared the Chief Justice. In which three senior judges were not taken into consideration (who had dissented)
•  2) Justice Khanna, who had given a dissenting opinion in the case of direct entry of prisoners, was also discriminated against.
  
•  Disadvantages of Collegium System:
  

•  Lack of transparency: Collegium is a closed-door process. Its decisions are not made public.
  
•  Problems related to vacancies: The collegium system is not effective in filling up the vacancies on time. As per March 2023 data, there are 329 vacancies in the High Court.
  
•  Nepotism: The Law Commission has also mentioned in 2009 about the prevalence of nepotism and partisanship and political privilege in the collegium system.
  
•  Against the principle of checks and balances: It completely excludes the executive in judicial appointments. Which leads to lack of accountability of the judiciary.
  
•  Women representation The collegium system does not ensure women representation. Which is the urgent need of the changing times. Eg:- SC has 4 out of 33 women, while HC has only 11.5% women representation.
  
•  Transfer of judges: It does not disclose the reason for the transfer of judges. Which leads to a potential threat to judicial independence.
  
•  Quality: Seniority is given priority in the collegium system. Due to which, quality does not get due justice.
  
• Way forward:-
  

•  To decide on MOP (Memorandum of Procedure) related to the appointment of judges.
• Both the executive and the judiciary should have a role in the appointment.
•  To prepare a database of the quality of judges which can be useful in transfers and promotions.
  
• From the above discussion, it can be said that the collegium system has its pros and cons. This has also been noted by the Law Commission. In this, challenges like ‘Judge Syndrome’ and ‘Merit VS Seniority’ can be overcome by making some changes in the system like NJAC.