Daily News Analysis

Why no decision on list sent by Collegium, SC asks government

26th March, 2021 Polity

Context: The Supreme Court asked the government to clarify on the status of 55 recommendations made by the Collegium for judicial appointments to various High Courts six months to nearly a year-and-a-half ago.



  • Forty-four of the pending recommendations were made to fill vacancies in the Calcutta, Madhya Pradesh, Gauhati, Rajasthan and Punjab High Courts.
  • These recommendations have been pending with the government for over seven months to a year. The remaining 10 names have been pending with the government despite their reiteration by the Collegium.


Collegium System: Collegium System is a system under which appointments and elevations of judges and lawyers to the Supreme Court and the High Courts, and also transfer of judges to High Courts and the Apex court are decided by a forum of the Chief Justice of India and 4 senior most judges of the Supreme Court.


The First Judge Case - S.P. Gupta v. Union Of India:

  • The meaning of the term, ‘consultation’ is not ‘concurrence’ and the power solely and exclusively lies in the President.


The Second Judge Case - Supreme Court Advocates-on-Record Association v. Union of India:

  • The opinion of the CJI has primacy in the matter of appointment of the High Court and the Supreme Court Judges and no appointment could take place under these provisions unless the conformity with the opinion of the CJI is present.
  • The opinion of the CJI, here, is the opinion formed by the CJI collectively after taking into account the views of two senior most judges.
  • The court also held that the CJI should be the senior most judge of the Supreme Court considered fit to hold the office.


Third Judge case - Re Presidential Reference:

  • The sole opinion of the CJI does not suffice and encompass the term consultation under these articles.
  • The Apex court held that the CJI shall consult a collegium, which consists of 4 other senior most judges.
  • The Composition then becomes CJI + 4 senior most judges of the Supreme Court. It was also held that if two of these other 4 judges give adverse opinion to the CJI, then the CJI shall not recommend the names to the government.
  • In cases of transfer of a judge of a high court to another high court, the judicial review only lies (save for exceptions) when the other 4 judges have not been consulted by the CJI or the Chief Justice of any High Court concerned is not consulted.