: The Collegium – A sleight of hand #WorldNEWSAll The system is completely opaque, as no records were maintained as to show what transpired in collegium meetings, so no outsider knows anything. A

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The Collegium – A sleight of hand #WorldNEWSAll
The system is completely opaque, as no records were maintained as to show what transpired in collegium meetings, so no outsider knows anything.
A CONTROVERSY is raging in India over the collegium system for appointment of Supreme Court and High Court judges.
The Union Law Minister, Kiren Rijiju, in several statements has said that the Collegium system is alien to the Constitution.
Kiren Rijiju
A bench of the Supreme Court has taken exception to the Law Ministers remarks. Some Opposition politicians have also criticised the Law Minister.
So is the Law Minister wrong? Did he make uncalled for remarks?
I submit that he is absolutely correct and the collegium system of appointing judges is indeed alien to our Constitution. Let me explain.
The method of appointing Supreme Court Judges is given in Article 124(2) of the Constitution which says :
Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
So a judge of the Supreme Court has to be appointed by the President of India (who under our system of governance acts on the advice of the Union Council of Ministers), and the President has to consult such judges of the Supreme Court or High Court as he deems necessary.
President is not bound to consult senior judges of the Court (except that he must consult the Chief Justice of India when appointing a judge other than the CJI). He may consult even junior judges of the Court, or even High Court judges.
Also, he has only to consult, and has not necessarily to take their concurrence.
But in the second Judges case (Supreme Court Advocates on Record Association vs Union of India, 1993) the Supreme Court held that the President can only appoint a Supreme Court judge on the recommendation of a body called the Collegium consisting of the 3 senior most judges of the Supreme Court.
In the third judges case (In re Special Reference 1 of 1998) this number of Collegium judges was expanded to 5. It was also held that the government can once return a recommendation of the Collegium for reconsideration, but if the Collegium reiterates the name the person must be appointed.
Now there is no mention of a collegium in Article 124 of the Constitution. It is a settled principle of interpretation of statutes that Courts cannot in the garb of interpretation amend a statute or substitute it with one of their own creation.

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