Q. Discuss the evolution of collegium system in India. Critically examine the advantages and disadvantages of the system of appointment of the Judges of the Supreme Court of India and that of the USA.

Model Answer:

Under Article 124(2), Indian Supreme Court judges are appointed by the President. However, judicial interpretation birthed the unique Collegium system, starkly contrasting with the USA’s executive-legislative model.

1. Evolution of the Collegium System in India

• First Judges Case (1981): Established executive primacy; ruled that “consultation” with the CJI does not mean “concurrence” (S.P. Gupta case).
• Second Judges Case (1993): Birthed the Collegium system; overruled the 1981 verdict by making the CJI’s advice binding (“concurrence”).
• Third Judges Case (1998): Expanded the Collegium to include the CJI and the four senior-most SC judges, emphasizing plural judicial consensus.

2. Indian System (The Collegium): Advantages & Disadvantages

• Advantage – Judicial Independence: Shields appointments from executive overreach and political interference, preserving the Basic Structure.
• Advantage – Peer Expertise: Judges are uniquely positioned to assess a candidate’s legal acumen, constitutional morality, and judicial temperament.
• Disadvantage – Opaqueness: Functions secretly with no formalized criteria, leading to the “judges appointing judges” critique.
• Disadvantage – Democratic Deficit: Lacks executive checks and public accountability (the 99th Amendment/NJAC Act was struck down in 2015).

3. US System (Presidential Nomination & Senate Confirmation): Advantages & Disadvantages

• Advantage – Democratic Legitimacy: Involves both the Executive and Legislature, ensuring robust constitutional checks and balances.
• Advantage – Public Transparency: Rigorous Senate Judiciary Committee hearings ensure thorough background checks and high public scrutiny.
• Disadvantage – Severe Politicization: Appointments often devolve into ideological battles, prioritizing partisan affiliations over pure legal merit.
• Disadvantage – Compromised Perception: Intense political lobbying can erode public trust in the ultimate neutrality and independence of the bench.

While the US model risks hyper-partisanship, India’s collegium struggles with opacity. India must finalize a revised Memorandum of Procedure (MoP) to institutionalize transparency while safeguarding judicial independence.