Collegium: a trigger to judiciary, executive rivalry

A seat is currently vacant for the judgeship of the United States supreme court. The president of the United States should elect a person to that position. However, there is too much of political discussion in the public arena about who fits the bill.

The remaining judges of that supreme court are heartbroken about so much of politicising and have said so openly. Still, if those remaining judges simply decide to issue a judgement to take away their president’s power of appointment and to give themselves the sole power to appoint a judge to their supreme court, the only outcome there would be that their government, legal scholars and the public would scoff at such a judgement. Nobody would give effect to it. This would also be the scenario in any other country of the world. Except, of course, in India. 

 Under our Constitution, the President was to appoint the judges of the Supreme Court and the high courts. Further, the power to transfer judges between different high courts and the power of appointment of the Chief Justice of India (CJI) and chief justices of the high courts, too, was vested in the President. In the constitutional sense, the President was to be guided by the decision of the Central government in these matters. Also, the President had to consult the CJI, some judges of the Supreme Court, the chief justices of the high courts or some judges of high courts in certain cases.

 In October 1993, the Supreme Court did the unthinkable. It removed that power from the President and gave that power to the CJI. A few years later, in October 1998, it refined this usurping of power and appointed four seniormost judges of the Supreme Court and the CJI to constitute a Collegium to exercise it, while still retaining the President for ceremonious effect.

Incidentally, except the present Central government which rests on a majority in the House of the people, we have only had fractured mandates in the election to the Lok Sabha over the past two decades. As a matter of fact, the previous Central governments had barely put up any resistance to such wresting of power by the Supreme Court.

However, the Collegium, that was meant to do a great deal of good to the country by such wresting of power, didn’t do a good job either. Later in 2014, joined by more than half of the state legislatures, Parliament amended the Constitution to bring back the primacy to the Central government. This amendment was struck down by the Supreme Court last year. But as a concession,  the Supreme Court allowed the Centre to jointly participate in a screening and vetting method known as the ‘Memorandum of Procedure’. A defiant and a bruised Central government came out with several suggestions that have not been acceptable to the Collegium. Thereby, the choices made by the Collegium haven’t been acted upon by the President.

What happens next? It is true that we have a huge backlog of pending cases at this moment. It is the judiciary itself that owes an explanation about why there was such a huge backlog and vacancies earlier. It holds a public duty to explain about this aspect and it hasn’t discharged it meaningfully as yet. In the past two decades, when the CJI and the Collegium held so much power over judicial appointments, what were they doing? Appointments to the high courts and elevation to the Supreme Court haven’t always rested on merit. Nepotism, overlooking of meritorious candidates and unwarranted secrecy have been heard about and commented upon publicly. On the other hand, the Supreme Court refuses to implement even basic transparency in its courtrooms by adopting electronic recording of its proceedings.

 Well, then what could happen in the future? One of the possibilities is that the Central government will take a more defiant stand and ignore the Supreme Court. Then, will it amount to contempt of court? We will know about it only in future. At any rate, there is a misconception that deserves to be cleared at this juncture.

(The writer is an advocate at the Supreme Court)