Lok Sabha Question No. 125 (STARRED), answered on 2018-12-19
Subject: Collegium System
Ministry: LAW AND JUSTICE
Asked by: BHARATI DHIRUBHAI SHIYAL, KIRTI (JHA) AZAD

## GOVERNMENT OF INDIA

## MINISTRY OF LAW AND JUSTICE DEPARTMENT OF JUSTICE

## LOK SABHA

## STARRED QUESTION NO. 125

## TO BE ANSWERED ON WEDNESDAY, THE 19.12.2018

## Collegium System

*125.   DR. BHARATIBEN D. SHYAL SHRI KIRTI AZAD:

Will the Minister of LAW AND JUSTICE be pleased to state:

- a) whether the Government is aware of the pre-ponderence of members of 400 odd families in higher judiciary and that the current collegium system has contributed to this malaise and if so, the details thereof
2. and the reasons therefor;
- b) whether  it  is  true  that  2/3 rd of  higher  judiciary  is  not  required  to compete in any examination and are merely picked up from the bar, which  contributes  to  the  perpetuation  of  these  400  families  to  be parachuted into the higher judiciary and if so, the details thereof; and
- c)  whether  the  Government  has  any  plans  to  introduce  an  All  India Legal Service on the lines of Central Services, for which an All India Exam will be conducted by UPSC and not any High Court and if so, the time by which the proposal is likely to be implemented?

## ANSWER

## MINISTER OF LAW AND JUSTICE AND ELECTRONICS AND

## INFORMATION TECHNOLOGY

(SHRI RAVI SHANKAR PRASAD)

- (a) to (c): A statement is laid on the Table of the House.

## Statement referred to in reply to Parts (a) to (c) of Lok Sabha Starred Question No. 125 due for answer on 19.12.2018 regarding 'Collegium system'

(a) and (b): The Judges of the Supreme Court are appointed by the President under Article 124 (2) of the Constitution while Judges of the High Courts are appointed by the President under Article 217 (1) and 224 (1) of the  Constitution.  Judges  of  the  Supreme  Court  and  High  Courts  are appointed as per the  procedure  laid  down  in  the  Memorandum  of Procedure prepared in 1998 pursuant to the Supreme Court Judgment of October, 6 th ,  1993 (second judges case) read with the advisory opinion of October, 28 th ,  1998 (third judges case). The word 'Collegium' is nowhere mentioned  in  the  Constitution.  It  has  come  into  force  as  per  Judicial pronouncements.

As per the  Memorandum of  Procedure (MoP), initiation  of  proposal for  appointment  of  Judges  in  the  Supreme  Court  vests  with  the  Chief Justice of India, while initiation of proposal for appointment of Judges of the High  Courts  vests  with  the  Chief  Justice  of  the  concerned  High  Court. Sometimes some of the names recommended by the High Court Collegium for  appointment  as  Judges  of  High  Courts  are  relatives  of  the  sitting  or retired Judges of Supreme Court and High Courts. The Government on its own cannot recommend any name for appointment as a Judge of Supreme Court and High Courts. However, if the Chief Minister desires to recommend the name of any person for appointment as a Judge of High Court,  he/she  should  forward  the  same  to  the  Chief  Justice  for  his consideration. The names of the recomendees are considered by the State Constitutional  Authorities,  Supreme  Court  Collegium  and  Constitutional

Authorities  at  the  Centre  before  their  appointment  as  Judges  of  High Courts.

In order to change the Collegium system of appointments of Judges of the Supreme Court and High Courts and to make it more broad-based and  transparent,  the  Government  brought  into  force  the  Constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 w.e.f. 13.04.2015. However, both the Acts  were  challenged  in  the  Supreme  Court.  The  Supreme  Court  vide Judgment dated 16.10.2015 declared both the Acts as unconstitutional and void.  The  Collegium  system  as  existing  prior  to  the  enforcement  of  the Constitution  (Ninety-Ninth  Amendment)  Act,  2014  was  declared  to  be operative. Subsequently, the Supreme Court vide order dated 16.12.2015 directed the Government to finalize the existing MoP by supplementing it in consultation  with  the  Supreme  Court  Collegium  taking  into  consideration eligibility criteria, transparency, establishment of secretariat and mechanism to deal with complaints.

As the process of finalizing the supplementation of the existing MoP was likely to take some time, at the initiative of the Government, the matter of  continuing  the  appointment  process  was  taken  up  with  the  Supreme Court and appointments of Judges of Supreme Courts and High Courts are being made as per the existing MoP.

The qualifications for appointment of Judges in the High Courts are provided  in  Article  217  (2)  of  the  Constitution.  There  is  no  examination either for Advocates or Judicial Officers for appointment as Judges in the High Courts. The appointment of Judges in the High Courts is divided in the ratio of 2:1 between  Bar  and  Judicial Service.  The  Advocates  are considered  for  appointment  as  Judges  of  High  Courts  based  on  their professional competence, net average professional income for last 5 years, age, reported judgments in which he/she has argued independently during last 5 years and other relevant factors. (c) No, Madam.

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