Jan 23,2023 | 11 min read

Collegium System for Appointment of Judges and Controversies

The Constitution of India provides provisions for the Union Judiciary in the Part V, Chapter IV (Articles 124 to 147) of the constitution. Similarly, Part VI Chapter V (Articles 214 to 232) deals with the High Courts in the States.

According to article 124(2) of Indian Constitution, "Establishment and constitution of Supreme Court: Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal 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 sixty five 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."

The Collegium System is the system of judicial appointment and transfer that evolved through Supreme Court Judgments rather than an Act of Parliament or a provision of the Constitution.


Appointment of CJI between 1950-1973:

Prior to 1973, a consensus existed between the Government and the Chief Justice of India and the senior most judge of the Supreme Court was always appointed as the Chief Justice of India. However, in 1973, Justice A.N.Ray was appointed as Chief Justice,superseding three other Supreme Court judges senior to him. This created a violation of the established convention. Again in 1977 same situation occurred, when Justice Mirza Hameedullah Beg was appointed as Chief Justice, superseding his senior colleagues. This had led to a conflict between the Executive and Judiciary.


First judges case, 1982 (S. P. Gupta v. Union of India)

During the course of this proceedings, the Supreme Court dealt with two major issues. First one, whether the word "consultation" in constitutional article 124 means "concurrence". The Apex Court held that consultation does not mean concurrence. The President was not required to make a decision based on Supreme Court's advice. Another significant point was that a High Court Judge can be transferred to any other high court in a state, even against his/her will.


Second judges case,1993 (Supreme Court Advocates-on Record Association vs Union of India)

The Supreme Court Advocates on Record Association filed this petition in 1993. In this case, the Supreme Court reversed its previous decision and redefined consultation as concurrence. As a result, the President of India is bound by the Chief Justice of India's consultations. This Judgment resulted in the birth of the Collegium System.


Third Judges Case, 1998 (In re Special Reference 1 of 1998)

In the year 1998, a reference was made to the Supreme Court by the President, asking for clarification on the definition of the word "consultation" in articles 124, 217, and 222 of the Constitution. The Apex Court held that "the Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four senior most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior most puisne Judges of the Supreme Court."


National Judicial Appointments Commission (NJAC)

The Ninety-Ninth Amendment to the Constitution in 2014 introduced the National Judicial Appointments Commission (NJAC) as a replacement for the Collegium system due to criticisms of lack of transparency and accountability in the appointment of judges. The amendment, along with the NJAC Act, was given the president's approval in December 2014, and established that appointments to the higher judiciary would be made by a commission consisting of:

  • The Chief Justice of India as the Chairperson, ex officio.

  • Two other senior Judges of the Supreme Court next to the Chief Justice of India as Members, ex officio.

  • The Union Minister in charge of Law and Justice as Member, ex officio.

  • Two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then the Leader of the single largest Opposition Party in the House of the People, as members. One of the eminent persons shall be nominated from amongst those belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women.


However, on 16 October 2015, the Supreme Court's Constitution Bench, by a 4:1 majority, declared the NJAC unconstitutional after hearing petitions filed by several individuals and organisations, with the Supreme Court Advocates on Record Association (SCAoRA) being the first and lead petitioner. The 99th Amendment and the NJAC Act were declared unconstitutional by Justices J. S. Khehar, Madan Lokur, Kurian Joseph, and Adarsh Kumar Goel, while Justice Jasti Chelameswar upheld them.


Recent Controversy on Appointment of Saurabh Kirpal:

Ever since the National Judicial Appointment Commission (NJAC) was declared unconstitutional, there has been regularly tensions between the government and the judiciary over the appointment of judges, with the Union Law and Justice Minister Kiren Rijiju stated in the Lok Sabha that the Union Government can't close its eyes and blindly accept the recommendations made by the Supreme Court collegium for appointments to the High Court and Supreme Court.

Recently, there has been a controversy regarding the appointment of senior advocate Saurabh Kirpal as a judge in the Delhi High Court. Kirpal is an openly gay advocate who has been practicing for over 20 years. He was part of the legal team that represented Sunil Mehra and Navtej Singh Johar in the landmark case in which the Supreme Court struck down Section 377, a colonial-era law that criminalized homosexuality. He was recognized as a senior advocate by 31 judges of the Delhi High Court in March 2021.Kirpal, who is 50 years old, is the son of Bhupinder Nath Kirpal, who served as the 31st Chief Justice of India from May to November 2002.

In 2017, Kirpal was initially recommended for elevation by the Delhi High Court's collegium, which was headed by then acting Chief Justice Gita Mittal. In November 2021, the Supreme Court collegium recommended Kirpal's appointment as a judge of the Delhi High Court. However, the government has consistently opposed his appointment and made two major objections- (i) the partner of Shri Saurabh Kirpal is a Swiss National, and (ii) he is in an intimate relationship and is open about his sexual orientation. 

However, in a resolution dated January 18 reiterating Kirpal's name, the Collegium comprising CJI DY Chandrachud, Justices SK Kaul and KM Joseph said,

"The fact that Mr. Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation. In view of the constitutionally recognized rights which the candidate espouses, it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground."

"There is no reason to pre-suppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to our country, since the country of his origin is a friendly nation. Many persons in high positions including present and past holders of constitutional offices have and have had spouses who are foreign Nationals. Hence, as a matter of principle, there can be no objection to the candidature of Shri Saurabh Kirpal on the ground that his partner is a foreign National."

"In this backdrop, the Collegium resolves to reiterate its recommendation dated 11 November, 2021 for appointment of Shri Saurabh Kirpal as a Judge of the Delhi High Court which needs to be processed expeditiously." 








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