Thinking beyond the collegium system

Union Law and Justice Minister Kiren Rijiju recently stated that the people of the country are disappointed with the collegium system for the appointment of judges of the Supreme Court and the High Courts, and that it is the government’s responsibility to appoint justices in accordance with the spirit of the Constitution.

In 2019, the then Allahabad High Court Justice Rang Nath Pandey had also appealed to the Prime Minister to restructure the system for judicial appointments, alleging malpractices in the collegium system. Justice Pandey alleged that casteism and nepotism dictate the appointment of judges by the collegium system. It is thus seen as an opaque and self-serving system.

The history of judges’ selection in the Indian Republic can be divided into two parts -- before and after the Second Judges Case (1993). The 1993 judgement introduced the collegium system for judicial appointments and held that “consultation” with the CJI really meant “concurrence”.

Read | Collegium system indispensable for independence of judiciary: Ex CJI Lalit

The pre-Second Judges Case period was an age of executive dominance and post-Second Judges Case has been an era of judicial primacy. Both executive dominance and judicial primacy go against the grain of constitutionalism. No institution can claim unchecked authority in the name of the people or the Constitution. Both executive dominance and judicial primacy have been plagued by indistinguishable maladies -- extraneous considerations over merit, favouritism and nepotism, and opaque procedure.

Collegium and NJAC

Examples of extraneous considerations in judicial appointments in India are plenty and hideous. Justice R S Pathak told George H. Gadbois Jr., that a sitting judge of the Supreme Court did not want Delhi High Court Chief Justice T P S Chawla to be elevated to the Supreme Court because Justice Chawla, who was that Supreme Court judge’s neighbour, had threatened to shoot his dog!

Executive interference in judicial appointments during the 1950-1971 period had only been due to political patronage; but after 1971, the Indira Gandhi regime insisted on a ‘committed judiciary’ and the government openly weighed the ideology of judicial nominees. Supersession and unfavourable transfers were the tools of intimidation deployed by the government against judges.

The Second Judges Case ruling created a ‘Judicial Collegium’ which has had the final say on the appointment of judges for the last three decades. It was the Supreme Court’s own brainchild and does not find mention in the text of the Constitution.

The executive role was reduced to a nominal one as it was held that no appointment could be confirmed by the President if the Chief Justice of India had not positively opined in favour of that appointment. Moreover, in the Third Judges Case (1998), it was clarified that in the process, the government could disagree, but if the recommendation was unanimously reiterated by the collegium, then the candidate must be appointed.

“While the genesis of the collegium was seen as an assertion of judicial independence, it has invited several controversies owing to its opaque functioning, questionable choices, and genuine lack of participatory involvement of interested stakeholders”, wrote Arun Jaitley in his essay The Judicial Collegium: Issues, Controversies, and the Road Ahead, “…bargains are struck between members of the collegium. Often, members have their favoured candidates and are willing to accept other member’s candidates if it means one’s own can be appointed or elevated. As a result, merit often ceases to be the single-most important criterion. It is replaced by community representation, caste, ideology, or plain familiarity.” Justice Ruma Pal (retd) commented that “The mystique of the process, the small base from which the selections were made, and ‘secrecy and confidentiality’ ensured that the process may, on occasion, make wrong appointments and, worse still, lends itself to nepotism.”

The Constitution (Ninety-ninth Amendment) Act 2014 was a bold step in the right direction. The Amendment established a National Judicial Appointments Commission consisting of six members -- the Chief Justice of India, two senior-most judges, the Union Law Minister and two eminent persons representing civil society. The National Judicial Appointments Commission Act 2014 was also enacted to guide the procedure to be followed by the NJAC in recommending candidates to the President. However, declaring that the judiciary cannot risk being caught in a “web of indebtedness” towards the government, the Supreme Court held the NJAC and the 99th Constitutional Amendment unconstitutional in 2015.

Lessons from Nepal

Comparative law is a powerful tool to solve legal conundrums. Many countries from the Global North and the Global South – such as the United Kingdom and South Africa, respectively -- have adopted the commission system involving the three branches of the government, civil society, legal academia, and the bar, for judicial appointments. However, Nepal, which has a younger constitution and historical, cultural, geographical, and political proximity with India, provides the most relevant modality for us.

The Chief Justice of Nepal is appointed by the President on the recommendation of the Constitutional Council. Justices of the Supreme Court are appointed by the President of Nepal on the recommendation of the Judicial Council. The Judicial Council is a five-member independent body headed by the Chief Justice along with the Law and Justice Minister, the most senior judge of the Supreme Court and two distinguished jurists representing the Prime Minister and the Nepal Bar Association. The Chief Justice andthe justices of the Supreme Court have to be confirmed by the Parliamentary Hearing Committee before they can be appointed by the President. The Parliamentary Hearing Committee consists of 15 members with representation from both the Houses
of Parliament.

The Constituent Assembly of India contemplated a multiplicity of authorities for appointment of judges of the constitutional courts with each of these authorities mutually checking and balancing their functioning, as in the case of Nepal. The prevailing collegium system has eliminated the checks and balances mechanism, which is a basic feature of the Constitution. A hybrid mechanism with a collective and transparent procedure for appointing judges, as Nepal has, is desirable for India, too.

(The writer is Under Secretary (Law) to the Government of Kerala. Views are personal)