Tweak or discard collegium system

The collegium system of appointments to the higher judiciary and transfer of judges, introduced by the Supreme Court in the Second Judges case in 1993, has been criticised in many ways and has been found wanting. The 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act, which sought to change the system, came to naught as the court refused to budge from its position. Now, it has agreed to list a petition seeking a review of the system, though at the time of mentioning it in court, Chief Justice of India D Y Chandrachud wondered whether a system which was brought into being by a nine-judge bench of the court could be challenged through a writ petition. But the fact that the court agreed to hear the matter may itself be taken as a step forward.

Union Law Minister Kiren Rijiju has recently criticised the collegium system and said that he “has to work with the system till the government came up with an alternative mechanism.” Even the 2015 judgement of the Supreme Court, which struck down the NJAC Act, had admitted that there were flaws in the collegium system. But the court has not tried to remove those flaws and improve the system in the last many years. These flaws are well-known. The system lacks transparency and accountability and has been known for nepotism and favouritism. Many of those appointed as judges are from the families of judges or circles close to the judges. The government’s role is very little and limited only to investigating the background of a nominee. It can raise objections and seek clarifications about the collegium’s choices but has to accept the choices if the collegium reiterates the same names. In recent months, the government has been sitting on some names and the court has objected to it. The government should abide by the law as it exists now, but the case for changing the law and the system is strong.

India may be the only democratic country where the legislature or the executive has no substantial role in the appointment and transfer of judges of the higher courts. Governments would naturally want to have such power, which is precisely what the Supreme Court has prevented through the collegium system. It is clear from Rijiju’s statement that the government would not be silent on the matter for long that it intends to change the balance of power in this regard. The present system needs a change, and there must be a serious debate as to how best to achieve that change while maintaining judicial independence against a strong executive. Hopefully, the Supreme Court will initiate such a debate.