A dissent for collegium reform

Debates around transparency and accountability in the functioning of the Supreme Court Collegium (SCC) system have resurfaced, in criticism articulated from within. The note of dissent by Justice B V Nagarathna, an SCC member, over the elevation of Justice Vipul Pancholi, Chief Justice, Patna High Court, as a judge of the Supreme Court, underlines misgivings.

The SCC resolution and its almost instant approval by the union government raise a few questions. It has failed to adhere to the precedent set by the earlier SCC in 2017, for providing reasons for appointment and elevation of High Court and Supreme Court judges. Furthermore, the dissent note has not been disclosed. The government’s fast-track action on the recommendation has only added to prevailing apprehensions regarding supersession of judges and gender imbalance in the apex court.

The SCC was established as an outcome of the interpretive power of the top court, with respect to Articles 124, 217 and 222. A Supreme Court ruling in 2015 struck down the proposed amendments for greater executive role through the National Judicial Appointment Commission (NJAC), and upheld the existing collegium system, reinforcing its primacy of decision-making. Logically, the involvement of two organs of State can further refine the decision-making process but this has also been cited as a limitation because of potential assertions by the executive.

A critical point from the perspective of democracy, as proposed in the NJAC, was the inclusion of one eminent person from “amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women”. This provision is in consonance with the social diversity and inclusive participation of marginalised sections in the highest judicial appointments. By proposing the presence of women, the NJAC had also facilitated gendered governance in the judicial appointment process. The SCC and the idea of NJAC have inherent limitations but in bodies constituted for oversight, the principles of transparency and accountability must hold precedence.

Even in the majority verdict upholding the primacy of the collegium system over the NJAC, in the case of Supreme Court Advocates-on-Record Association vs. Union of India, 2015, the judges pointed out the need for transparency and accountability of the collegium and its functioning.

The recent criticism from one of its own members has, again, tested the collegium system on its adoption of checks and balances and its engagement with the other organs of the State, civil society, and citizens. Here, it is important to note that the Indian Constitution has adopted a relative separation of powers rather than in its strictest sense, as can be seen in, for instance, the American constitution.

Solution in consultation

While interpreting the provisions of the Articles 124, 217 and 222 in the second judges’ case, the top court seems to have ventured into what is known as judicial governance. The collegium has been functional as an alternative mechanism but any system that defines its own composition can also be weighed down by a lack of accountability. It is worthwhile to look at the broad approaches that are in place to interpret the Constitution namely (i) the original intent of the framers and (ii) as an evolving or living document. However, in establishing the SCC, the evolving socio-political context appears to have been bypassed. This effectively dilutes institutional transparency and accountability, which is indispensable for a democracy. It is a worrying pattern, considering that institutional decline and erosion of judicial autonomy are also seen as prominent markers of majoritarian regimes across the world.

The government will do well to initiate a dialogue with the top court to formulate a robust, suitable mechanism and firm up a rationale in the appointment of judges. The ongoing rift and the attack on the existing collegium system will only deepen the power struggle between the executive and the judiciary. The recommendations of the National Commission to Review the Working of the Constitution (NCRWC) in 2002 make important reference points in this context, with the proposed establishment of a National Judicial Commission to make recommendations for judicial appointments.

The Commission noted that “the recommendation for the establishment of a National Judicial Commission and its composition are to be treated as integral in view of the need to preserve the independence of the judiciary”. Importantly, it noted that “it would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations”. Consultative processes, without room for executive capture, are the way forward in reaffirming the trust in constitutional governance.

(The writer is an assistant professor at the Symbiosis Law School – Symbiosis International [Deemed University], Pune)