Sankalp Integrated Mains

Program
GSII_Lec 04

Q1. Discuss the Collegium System of Judges and do you agree that the said
system need reforms? Comment

Introduction
The judges of the Supreme Court and High Court in India are appointed by President
as per article 124(2) and 217 of the constitution. In such appointment, the President
is required to hold consultation with such of the Judges of the Supreme Court and of
the High Courts in the States as he may deem necessary for the purpose.

Collegium System
1. The Collegium System is a system under which appointments/elevation of
judges/lawyers to Supreme Court and transfers of judges of High Courts and
Apex Court are decided by a forum of the Chief Justice of India and the four
senior-most judges of the Supreme Court.’
2. The collegium of judges is the Supreme Court’s invention. It does not figure in
the Constitution, which says judges of the Supreme Court and High Courts are
appointed by the President and speaks of a process of consultation.
3. In effect, it is a system under which judges are appointed by an institution
comprising judges

Evolution of Collegium system

1. After some judges were superseded in the appointment of the Chief Justice of
India in the 1970s, and attempts made subsequently to affect a mass transfer
of High Court judges across the country, there was a perception that the
independence of the judiciary was under threat.
 2. The ‘First Judges Case’ (1981) ruled that the “consultation” with the CJI in the
matter of appointments must be full and effective
3. The Second Judges Case (1993) introduced the Collegium system, holding that
“consultation” really meant “concurrence”. It added that it was not the CJI’s
individual opinion, but an institutional opinion formed in consultation with the
two senior most judges in the Supreme Court.
4. On a Presidential Reference for its opinion, the Supreme Court, in the Third
Judges Case (1998) expanded the collegium to a five-member body,
comprising the CJI and four of his senior most colleagues.
5. The recommendations of the Collegium are binding on the Central
Government, if the Collegium sends the names of the judges/lawyers to the
government for the second time.

Procedure followed by the collegium

1. The President of India appoints the CJI and the other SC judges. As far as the
CJI is concerned, the outgoing CJI recommends his successor.
2. For other judges of the top court, the proposal is initiated by the CJI. The CJI
consults the rest of the collegium members, as well as the senior most judge
of the court hailing from the High Court to which the recommended person
belongs.
3. The Chief Justice of High Courts is appointed as per the policy of having Chief
Justices from outside the respective States. The collegium takes the call on
the elevation. High Court judges are recommended by a collegium comprising
the CJI and two senior most judges.

Issues in Collegium System

1. Credibility of the SC: Controversial collegium system of judicial appointments
undermines the independence of judges and raises doubts about the
credibility of the highest court.
a. Example: The controversy over the proposed elevation of Justice P.D.
Dinakaran of the Karnataka High Court to the Supreme Court by the
collegium of the Chief Justice and four senior-most judges of the
Supreme Court was criticized for overlooking apparently suitable
judges by the collegiums
2. Nepotism: There have been cases where the nearest relative of Supreme
Court judges has been appointed as a high court judge, ignoring merit.
a. During the regime of Chief Justice Ranjan Gogoi, judges far lower in the
combined All India Seniority of High Court judges were appointed to SC,
 and the reason assigned was that those selected were found more
meritorious.
3. Supreme court is overburdened: The Supreme Court did not realize the
burden it was imposing on the collegium of selecting judges for the Supreme
Court and High Courts and transferring them from one High Court to another.
a. An administrative task of this magnitude must necessarily detract the
judges of the collegium from their principal judicial work of hearing and
deciding cases.
4. Lack of Transparency: The lack of a written manual for functioning, the
absence of selection criteria, the arbitrary reversal of decisions already taken,
the selective publication of records of meetings prove the opaqueness of the
collegium system.
a. The system often overlooks several talented junior judges and
advocates.
5. NJAC, A Missed Opportunity: The National Judicial Appointments Commission
(NJAC) could guarantee the independence of the system from inappropriate
politicization, strengthen the quality of appointments and rebuild public
confidence in the system.
a. The decision was struck down by the SC in 2015 on the ground that it
posed a threat to the independence of the judiciary.
6. Lack of Consensus among Members: The collegium members often face the
issue of mutual consent regarding appointment of judges.
a. For instance, recently retired CJI Sharad A. Bobde was perhaps the first
chief justice to have not made even a single recommendation for
appointment as SC judge due to lack of consensus among the collegium
members
7. Unequal Representation: The other area of concern is the composition of the
higher judiciary. While data regarding caste is not available, women are fairly
underrepresented in the higher judiciary.
8. Delay in Judicial Appointments: The process of judicial appointment is
delayed due to delay in recommendations by the collegium for the higher
judiciary.

Reforms needed in the collegium system

1. Transparent Procedure of Appointment: The need of the hour is to revisit the
existing system through a transparent and participatory procedure,
preferably by an independent broad-based constitutional body guaranteeing
judicial primacy but not judicial exclusivity.
a. This adds accountability that is much needed to resolve the deadlock.
 2. The new system should ensure independence, reflect diversity, demonstrate
professional competence and integrity.
3. Objective Selection Process: The system needs to establish a body which is
independent and objective in the selection process
a. In several countries of the Commonwealth, National Judicial
Appointment Commissions have been established to select judges.
4. Setting up a constitutional body accommodating the federal concept of
diversity and independence of judiciary for appointment of judges to the
higher judiciary can also be thought of as an alternate measure.
5. There should be a fixed time limit for approval of recommendations.
6. Involvement of President: As of now, instead of selecting the number of
judges required against a certain number of vacancies, the collegium must
provide a panel of possible names to the President for appointment in order
of preference and other valid criteria
7. New memorandum of procedure: After the Second and Third Judges Cases, a
Memorandum of Procedure had been formulated to govern how the process
of how the Collegium would make recommendations to the Executive.
a. The government therefore suggested that a new MOP be drafted and
finalized for appointment of SC judges and the Executive to get a veto
over candidates for national security reasons in this new MOP.

Conclusion:
Faced with intense public scrutiny and government pressure, the judiciary’s
institutional weaknesses are being laid bare. These are not simply the moral failings
of one individual or the consequences of the misjudgment of a few. It is another
illustration of the institution’s inability to accept its internal infirmities.
Q2. There is a need of Representative Judiciary in India. Analyse the
statement wrt the lack of women representation in judiciary.

Introduction
The nation may soon have its first woman Chief Justice of India (CJI- Justice BV
Nagarathna). This is a welcome step.
However it has raised the larger issue of low representation of women in the
judiciary.

State of Women Representation in Judiciary

1. Women Representation in Supreme Court: The first-ever woman judge
(Justice Fatheema Beevi) in the Supreme Court (SC) was appointed in 1989, 39
years after the apex court came into existence.
a. Since then, only 10 women have become judges in the apex court.
2. Women Representation in High Courts: The share of women judges in High
Courts (HCs) was no better. Overall, women judges account for only 11% of HC
judges.
a. In five HCs (Patna, Meghalaya, Manipur, Tripura and Uttarakhand high
courts), no woman served as a judge, while in six others, their share
was less than 10%.
b. The percentage of women judges at the Madras and Delhi High Courts
was relatively high.
3. Women Representation in District Courts: Women's representation in the
judiciary is slightly better in the lower courts where 28% of the judges were
women as of 2017. However, it was lower than 20% in Bihar, Jharkhand and
Gujarat.

Reasons For Low Women Representatives

1. Opaque Collegium System Functioning: More women tend to enter the lower
judiciary at the entry level because of the method of recruitment through an
entrance examination.
a. However, the higher judiciary has a collegium system, which has
tended to be more opaque and, therefore, more likely to reflect bias.
2. No Women Reservation: Many states have a reservation policy for women in
the lower judiciary, which is missing in the high courts and Supreme Court.
a. Reservation quota for women is perhaps just one among many factors
that encourages and facilitates more women to enter the system.
 b. In states where other supporting factors are present in sufficient
measure, women’s quotas perhaps help bridge the gap in gender
representation.
c. However, the Bill for giving 33% reservation to women in Parliament
and state legislatures has not been passed till date, despite all major
political parties publicly supporting it.
3. Familial Responsibilities: Factors of age and family responsibilities also affect
the elevation of women judges from the subordinate judicial services to the
higher courts.
a. A lot of female judges join the service very late, which makes their
chance of making it to the high courts or Supreme Court bleak.
b. Then there are some who are not able to focus on their growth as a
judge because their focus shifts towards their families after joining
service.
4. Not Enough Women in Litigation: Since lawyers elevated from the bar to the
bench form a significant proportion of judges in the high courts and Supreme
Court, it is worth noting that the number of women advocates is still low,
reducing the pool from which women judges can be selected.
a. While official data on the number of women in the legal profession as a
whole is not available, a 2020 news report estimates that women make
up only 15% of all enrolled advocates in the country.
5. No serious attempt has been made during the past 70 years to give adequate
representation to women either in the high courts or in the Supreme Court.
a. In India, women constitute about 50% of the total population and a
large number of women are available in the Bar and in the judicial
services for elevation but, in spite of that, the number of women judges
is small.

Significance of High Women representation

1. Motivates More Women to Seek Justice: Higher numbers, and greater
visibility, of women judges can increase the willingness of women to seek
justice and enforce their rights through the courts.
a. Though not true in all cases, having a judge who is the same gender as
litigant, can play a role in setting the litigant’s mind at ease.
b. For instance, think of a transgender woman as a judge listening to the
case of other trans women. That would inspire confidence in the
litigant, as well.
2. Different Point of Views: It is definitely valuable to have representation of
various marginalities in the judiciary because of their different lived
experiences.
 a. Diversity on the bench would definitely bring in alternative and
inclusive perspectives to statutory interpretations.
3. Increase Judicial Reasoning: Increased judicial diversity enriches and
strengthens the ability of judicial reasoning to encompass and respond to
varied social contexts and experiences.
a. This can improve justice sector responses to the needs of women and
marginalized groups

Suggestions
1. Changing Patriarchal Mindset: The need of the hour is to correct the
patriarchal mindset in recommending and approving the names of those who
are to be elevated as high court judges and come out with more
representation to worthy women lawyers and district judges for elevation.
a. Unless women are empowered, justice cannot be done to them.
2. Provision of Reservation: It is high time that all those who matter in the
appointment of judges to the high court and the Supreme Court, realise the
need of giving adequate representation to women in the judiciary.
a. In fact, the superior judiciary should also have horizontal reservation
for women such as subordinate judiciary without diluting merit.
3. Vacancies as an Opportunity: There are more than 40% of the vacancies in
high courts. But it gives an opportunity to make up for the deficiency in the
matter of representation to women in higher judiciary.
4. Removing Gender Discrimination: It will be a step in the right direction and
ultimately may lead to more social and gender harmony in the judiciary.
a. Any step in this direction will be a benchmark for society with many
more young women students coming forward and opting for law as a
profession.

Conclusion
To be truly diverse, the Indian judiciary would need representation of judges from
not only different gender identities, including trans and non-binary but also different
caste, socioeconomic, religious, and regional backgrounds.
It would also mean appointment of judges from doubly marginalised sections to
allow for the representation of intersectional voices.