The evolution and potential reconsideration of India's collegium system for judicial appointments are discussed, highlighting landmark judgments, controversies, and the need for transparency and meritocracy.There are four landmark judgments pronounced by the Supreme Court of India which created the present collegium system in India. So the first judgment was pronounced in the year 1981 and that case is known as the First Judges Case, though it is a popular name, the real name was is SP Gupta versus Union of India. So a seven judge bench was constituted to decide some important questions having far-reaching impact. So finally that judgment held that the President of India was the sole authority to appoint Supreme Court judges and High Court judges, though the President of India was to consult the Chief Justice of India and other senior most judges of the Supreme Court in appointment of Supreme Court judges, and the President of India also has to consult the Chief Justice of High Court and other senior most judges of High Court as well as the Supreme Court to appoint High Court judges. But the opinions of the Supreme Court judges and High Court judges were not binding as it was held by the Supreme Court and the President of India in cases would override the recommendation of Supreme Court and High Court, but normally the President was to follow the recommendation but in exceptional cases the President would override. So the primacy was given to the executive because we all know that the President of India means the Government of India. So we have that Westminster model of government where every constitutional function is performed by the President of India but actually it is the cabinet which advises the President to perform his constitutional function. Article 74 of the Constitution provides that there shall be a Council of Ministers headed by the Prime Minister of India to aid and advise the President and the President shall exercise all his functions according to such advices. So President shall exercise, the phrase is clear, that means the President of India has no other option but there is a proviso that provides that the President of India may request the Council of Ministers to reconsider any decision. That means the President of India has been given at least that minimum power of advising or requesting the cabinet to reconsider some decision. But if the cabinet again sends back that proposal with or without agreeing or disagreeing with the President, in the second case the President of India has no other option. That is parliamentary form of government. Justice Krishna Iyer elaborated the basic features of parliamentary form of government in his famous judgment and that judgment is known as the Shamsher Singh versus State of Punjab and that judgment is a masterpiece as far as interpretation of parliamentary form of government is concerned. He pronounced that judgment in 1974. So that SP Gupta judgment remained in force for almost 12 to 13 years. In 1993 the Supreme Court created the collegium system for the first time in the history of India. The Supreme Court of India created that collegium system but in 1993 the collegium system was consisted of the Chief Justice of India and two other senior most judges and the Chief Justice of India was given the main power, he was given the primary places, I mean he was given the primacy and the President of India was to follow the collegium recommendation. That was the judgment. But at that time the judgment was criticized. I think the Chief Justice Ahmadi delivered a dissenting judgment because of that judgment the balance of power had shifted not to the collegium but to the Chief Justice of India. So I also think that judgment was wrong. So but Article 141 of the Constitution says that the judgments of the Supreme Court are binding. The law declared by the Supreme Court of India is binding. So because of that judgment there were so many names of learned advocates and High Court judges were pending because the Chief Justice of India and two other senior most judges of the Supreme Court failed to decide their names. So finally in 1998 a presidential reference was placed before the Supreme Court of India under Article 143 and the Supreme Court of India expanded the collegium system. So that collegium system was consisted of Chief Justice of India and four other senior most judges of the Supreme Court and their consultative process should be unanimous and any one judge can deliver a dissenting note, dissenting opinions and through discussion among the judges the names of the person to be appointed as Supreme Court and High Court judges be finalized. So I think that judgment was a better judgment than the Second Judges Case. The presidential references of 1998 is known as the Third Judges Case. So in 2014 when the NDA came to power on its absolute terms the NDA government decided to amend the Constitution. The 99th Amendment Bill was introduced, it was passed, later the President of India gave his assent and the National Judicial Appointment Commission was created, shortly known as NJAC. So NJAC was consisted of Chief Justice of India, two senior most judges of the Supreme Court, the Law Minister and two eminent persons to be nominated by the President of India after consultation with the Chief Justice, Prime Minister and Leader of Opposition etc. So NJAC was a commission of six members where you see that the role of executive and judiciary was equally divided and it was also mentioned that any two members could veto. Later that amendment was challenged. A five judge bench was constituted and in October 2015 the largest ever, largest ever judgment of Supreme Court was pronounced. That was the voluminous judgment, maybe that judgment contained 1500 pages and the NJAC was struck down by majority of four judges but one judge Justice Chelameswar dissented. Justice Chelameswar happened to be the former Chief Justice of Guwahati High Court. He, he was from Andhra Pradesh. So I disagree with Justice Chelameswar's judgment. He was appearing to be more perfect than his colleagues. NJAC was gone, NJAC was struck down. But after 2014 we saw that on many occasions that the Supreme Court collegium and the Government of India came into loggerheads. The name of KM Joseph is the best example. The KM Joseph, the former Chief Justice of Uttarakhand High Court restored a government which was dismissed by the President of India and where Article 356 was pronounced. Once the collegium system recommended his name the Government of India used that delaying tactics to prevent Justice KM Joseph from becoming a judge of Supreme Court. Finally when the Supreme Court again reiterated its stance the Government of India was left no other option but to appoint him but it had cost him several months. Again we saw that one controversial judge Justice Victoria Gowri who happened to be a member of political party who was known for her hate speeches against Christians and Muslims and her name was recommended by the collegium to be appointed as the judge of Madras High Court, of course as the additional judge. But here the Government of India should have objected but the Government of India did not object but once some other person approached the Supreme Court to tell her background at that time Supreme Court was in a big dilemma. If the Supreme Court was to reconsider her name that means the Supreme Court was to reconsider its judgment but that did not happen. So again very recently we saw that the nephew of former Chief Justice of India BR Gavai was appointed as a judge of Bombay High Court and his name was recommended by the High Court collegium of Bombay High Court and later we have come to know that Chief Justice Gavai already recommended the name of a judge and who happened to be a government nominee as a judge of Supreme Court. So exactly that happened. So that is going on. Sometimes collegium recommends, sometimes government uses the delaying tactics and that is going on. So the Supreme Court of India fails to set the time limits. That means the Supreme Court of India could have set a time limits within which the Government of India has either to return their names but the Government of India could not exercise his veto power. So now Justice, I mean Chief Justice Suryakant has said that he is going to reconsider those judgments which created the collegium systems and especially he talked about that NJAC judgment. But remember the NJAC judgment was pronounced by a five judge bench. So the Chief Justice of India has that privilege to reconsider any previous decision. He has to consider a larger bench, maybe a seven judge bench or a nine judge bench to reconsider that matter. I think this is a welcome step because the collegium system has many pros and many drawbacks. The criticism against collegium system is that it lacks transparency and the collegium system may be engaged in nepotism. So I am again repeating, the lack of transparency and nepotism are the two main reasons. But at the same time it does not mean that the National Judicial Appointment Commission appeared to be a sound system in this respect. We may follow the British system. In Britain they also have a National Judicial Appointment Commission but that is much bigger and much larger and they appoint the candidates only on merit. They evaluate the judgments, the performance which is not subjective but in case of NJAC their power is totally subjective. They have very wide discretionary power. But if you go to the Britain then you will see that the members of the National Judicial Appointment Commission, though the National Judicial Appointment Commission is not used in Britain, rather that Judicial Appointment Commission and you will see that the members of that commission have to be elected and their election is not based on government discretion rather they have to appear in viva exams. That means that their qualification will be checked by a body of experts and that commission once it is constituted the commission recommends the names to be appointed as the Lord Chancellor and judges and their selection process is based on advertisement and that is purely merit. Though I know that it is impossible, at least now it is impossible in India but the NJAC has to be revised but it must be consisted of seven members, nine members, 11 members or maybe 13 members where judiciary and executive and neutral persons must have the equal saying and only through discussions, negotiation and consensus names can be finalized. Of course that is appearing to be difficult but remember we must not forget that no system is perfect. The life of law is not logic but experience. We must not forget it.

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