Collegium: A ‘Non-Constitutional’ Entity

Collegium: A ‘Non-Constitutional’ Entity: The term collegium is not explicitly used in the Indian Constitution. It has been enacted in accordance with the judicial ruling. The assembly of the highest-ranking Judges of the Supreme Court and the Chief Justice of India responsible for the nomination of Judges is paradoxically referred to as the collegium.[1] The foundation of the system may be traced to the recommendations of the Bar Council. On October 17, 1981, during a national conference for lawyers in Ahmedabad, Gujarat, it was proposed that a collegium system be established for the appointment of Supreme Court judges by designated authorities.[2]

1. The Chief Justice of India.
2. Five senior justices of the Supreme Court.
3. Two individuals who would represent the BCI and the Bar of the Supreme Court.

            Subsequently, J. Bhagvati in S.P. Gupta v. UOI[3] on December 30, 1981, emphasized the imperative of the collegium system for the appointment of judges. Expounding on the definition of the term consultation, Bhagwati J affirmed the perspectives of Krishna Iyer J. It was articulated in Union of India v SankalchandHimmatlalSheth that ‘We concur with the opinion of Krishna Iyer, J.’ It was stated in the SankalchandSheth Case that consultation differs from consent. They may engage in discussion yet disagree; they may confer but not reach consensus. However, Bhagwati J in SP Gupta explicitly expressed his dissatisfaction with the current system of judicial appointments. In this system, the authority to appoint judges is solely assigned to one individual (the President). The selection ‘may or may not be accurate or sufficient’ and ‘it may frequently be flawed and disrupted by external or irrational individuals.’[4] According to existing legislation, it is the executive’s authority to request the collegium to reevaluate nominations, aligning with the overarching notion of checks and balances. However, rejecting the nomination of a respected attorney without providing any formal commentary undermines both this principle and the counter-majoritarian function of the judiciary. According to Subramaniam, the administration appears to indicate its readiness to undermine judicial independence and aims to regain authority over appointments. Subramaniam expressed in a letter to Chief Justice RM Lodha of the Supreme Court, “Recent events have instilled profound doubts regarding the Executive Government’s capacity to recognize and uphold the independence, integrity, and dignity of the judiciary. I do not anticipate any improvement in this disposition over time.”[5]

[1]The Constitution of India, Bare Act, 2021 publication. Universal, New Delhi.

[2]AIR 1982 Supreme Court.

[3]AIR 1982 Supreme Court.

[4]AIR 1982 Supreme Court.

[5]Indianexpress.com updated on September 16, 2020. Last accessed on March 26, 2025.