During Justice Chandrachud’s two-year tenure, the collegium he will head will potentially make as many as 18 recommendations for appointment of judges to the Supreme Court. It will be an unusual collegium: instead of five members, it will have six.
What is the collegium system?
- The collegium system of appointing judges evolved through three significant verdicts of the Supreme Court, known as the First, Second, and Third Judges Cases.
- The Constitution of India does not mention the collegium system; however, these three cases established that the collegium headed by the Chief Justice of India will have primacy in the appointment of judges to the higher judiciary.
- The Supreme Court collegium is headed by the CJI and comprises four other senior-most judges of the court.
- This collegium makes recommendations to the government for appointment of judges to the SC and of Chief Justices of High Courts, and the transfers of HC judges.
- A separate three-member collegium, headed by the CJI and comprising the two senior-most judges of the SC makes recommendations for appointment of judges to HCs.
What are the Judges Cases?
1. First Judges Case (1982) —
- SC held that “consultation” of judges does not mean concurrence
- Hence, it gave the primacy in appointment of judges to the Executive.
2. Second Judges Case (1993) —
- Court reversed its earlier ruling by changing the meaning of “consultation” to concurrence.
- With this, the advice tendered by CJI became binding. However, the CJI would have to take into account the views of two of his senior most colleagues.
3. Third Judges Case (1998) —
- Court gave primacy to the opinion of CJI in the matter of appointment of Judges.
- However, Chief Justice must consult four seniormost judges of SC.
- Opinion of all members of the collegium should be in writing.
- Even if two judges in the collegium give an adverse opinion of a person for appointment as the SC judge, the CJI should not send the recommendation to the government.
What is a 5+1 collegium?
- Given the order of seniority, a potential CJI will enter the Chandrachud collegium only in May 2023. However, Justice Khanna will be the sixth member of the collegium from November 9, 2022 itself.
- This happened earlier in 2007 — when then CJI K G Balakrishnan took the top office, the collegium he headed did not have a potential CJI candidate. Justice S H Kapadia, who was next in line to be CJI, was invited to the collegium as the sixth member.