When the Supreme Court is at the Receiving End of Justice

https://www.livelaw.in/columns/whether-collegium-system-has-come-a-full-circle-180556

The collegium system, from the very onset of its implementation, has led to a predicament for the judiciary to face allegations for its accountability. In the light of the same, recently a petition was filed in the Supreme Court of India, challenging the collegium system used as a mechanism for judicial appointments. Chief Justice of India, Justice D.Y. Chandrachud has recently acknowledged to entertain the plea challenging the said practice.

The quandary with regards to the collegium system for judicial appointments to High Courts and Supreme Court encounters hue and cry as it goes against the constitutional ethos.  The relevancy can be comprehended by taking note of the fact that nowhere does the Constitution mention the word “collegium system”. The Indian Constitution is thereby, oblivious to such a practice.

Article 217(1) states that the power to appoint Judges to the Supreme Court and the High Courts shall be undertaken by the President of India in consultation with the Chief Justice of India. Whereas, for the appointments to the High Courts, it must be the prerogative of the President with the consultation of the Chief Justice of India, concomitantly with the Governor and Chief Justice of that State.

According to the Petitioners, it becomes ex facie void. The relevancy of this statement lies with understanding the augmentation of collegium system itself. After the literal interpretation of the Constitutional provision which was given in S.P. Gupta v. Union of India, it obliterated the role of the Chief Justice in judicial appointments. However, in the case of Supreme Court Advocates-on-Record Association v. Union of India, the foundation of Collegium System was laid down.

The Petitioners herein, by the means of the petition are alleging that the whole purpose for having Collegium System was to uphold the principles of the basic structure by maintaining the Independence of Judiciary which is not getting satiated by the said system. It mentions that via this exfacie unconstitutional practice, the hegemonizing of the post acquired in the Judiciary has taken place whereby the recruitment of the near and dear ones of the senior judges of the Supreme Court have gotten preferences over the actually deserving candidates.

The intervention of the Supreme Court, when it itself becomes a major stakeholder of the repercussions of the said practice is much awaited.