Has collegium system of judges' appointment outlived its utility?

 This question has been bothering not just the top echelons of judiciary in India but the executive too. Though the ‘collegium system’ which appoints judges has been in place for quite some time now, there have been murmurs of dissatisfaction over the practice in different quarters.

The collegium system — which is followed in the appointment of judges to the supreme court and the high courts has recently been challenged in the supreme court.  The petitioner, Rajasthan-based Suraz India Trust wants the court to declare the system ‘ultra vires’ and ‘unconstitutional’ because the constitution does not mention it anywhere and it has been brought into existence through the judgements of the supreme court. The bench, which heard the matter, referred it to the Chief Justice of India for ‘appropriate direction’ as the petition raised ‘complicated legal issues.’ On its part, the government has said that the matter required ‘reconsideration.’

The trust questioned two significant verdicts of the apex court in Advocate on Record Association vs Union of India and Others’ (1993) and Special Reference No 1 of 1998 that have established the primacy and supremacy of the collegium system in the appointment of judges to the higher courts. The collegium — which the critics call as judges appointing themselves — comprises four senior most judges in the supreme court and the Chief Justice of India and three more senior most judges in a particular high court including its chief justice.

Former Delhi high court’s chief justice A P Shah, who could not make it to the apex court, quotes Justice Ruma Pal, formerly supreme court judge to say that the process by which a judge is presently appointed to the high court or the supreme court is “one of the best kept secrets in the country”. The constitution dealing with the appointment of judges of the supreme court (Article 124) and the high court (Article 217) says that the President would appoint such judges in ‘consultation’ with other judges.

Initially, the power to appoint judges vested in the executive. That, now, rests with the chief justice and the senior judges of the court. The constitutional scheme now stands amended with the ‘concurrence’ instead of ‘consultation’ of collegium being made mandatory for the President to make any appointment of judges in the apex court and the high courts. The votaries of the present system regard it as a manifestation of the constitutional principles of separation of power. Besides, they believe that it also reinforces the independence of judiciary.

Currently, the removal proceedings are on against Calcutta high court judge Soumitra Sen and Sikkim high court’s chief justice P D Dinakaran. Had there not been serious charges like land grabbing, then Karnataka high court’s chief justice Dinakaran would have been elevated to the supreme court. Notably, CBI has recently filed a chargesheet against Justice Nirmal Yadav before her retirement from Uttrakhand high court for alleged corruption.

Probably, that is why former Delhi high court judge R S Sodhi feels the collegium system has not been able to deliver so far. He dubs it as ‘a total failure,’ when it comes to inducting judges of quality. “Keeping the system of appointment of judges within the four walls of collegium has given rise to a lot of criticism like uncle-and-son-syndrome,” justice Sodhi opines.

Representation to executive

However, former Chief Justice of India V N Khare differs with justice Sodhi. He does not call it bad as such. But, he does not mind making a way for representation to the executive in it. “Since there has been talk of making it more participatory, I feel one or two persons as nominees of the president can be included in the collegium or selection committee,” he says. Justice Khare, under whose tenure Justice S H Kapadia was elevated as the Chief Justice of India, feels the president can nominate a renowned jurist or a former judge or a Chief Justice of India in the collegium. He points out that prior to 1993, when the primacy vested with the executive, very eminent judges were still appointed to the high courts and the supreme court.

Justice Shah, whose elevation to the supreme court was said to have been stalled, says the present system of judicial appointments in the constitutional courts exemplifies the ‘misalignment’ between the core values of judicial independence and accountability. “Our current appointments system is out of step with democratic culture primarily because it lacks transparency, and provides for no oversight. Choosing judges based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit,” Justice Shah points out. He calls for taking lessons from other countries like the UK and South Africa where a transparent process of appointment of judges is followed, while maintaining judicial independence. “International consensus seems to favour appointments to the higher judiciary through an independent commission,” he says.

A supreme court bench, which heard the plea challenging the collegium system, saw some questions being framed such as whether the clear language of Article 124 (2) can be altered by judicial verdicts and whether there was any convention that the president is bound by the advice of the Chief Justice of India and four senior most judges of the supreme court while appointing a supreme court judge.

Justice Sodhi says “There has to be some kind of minimum standards — written test, exams or interview. We can no longer bank upon present system as the judges selected by it have failed to meet the aspiration of the office.”