Criticism of Collegium: Who should appoint judges?

Union Law Minister Kiren Rijiju has recently criticised Collegium system of appointment of judges, saying nowhere in the world, except in India is there a practice where judges appoint their brother judges. He also said judges spent most of their time in picking up judges, instead of passing judgements. He called the system as opaque and not accountable, while also maintaining that people were not happy with it.

Days after demitting office, former Chief Justice of India U U Lalit, however, brushed aside the remarks, saying the Collegium system is perfect and here to stay, unless the government wants to revive the National Judicial Appointment Commission which was brought in 2014 but the Supreme Court by a five-judge Constitution bench declared it unconstitutional. He believed the system is indespensable for independence of judiciary.

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"The Collegium system has so far worked fine and selected maximum number of efficient judges," President of Supreme Court Advocate on Record Association Manoj K Mishra said.

However, he felt, the system is required to be streamlined in somewhat better way in its implementation, by making a permanent secretariat functional for appointment of judges at the High Courts and the Supreme Court as proposed in the NJAC judgement.

Senior advocate Mahalakshmi Pavani said, "In my view, the Collegium system has worked far more satisfactorily than the predecessor system in place which after a point had become full of blemishes with the appointments that were being recommended and made to the higher judiciary and especially the Supreme Court. The Executive would seek out individuals entrenched in the mindset of the establishment who would be subconsciously subservient when the State would be a litigant in Court."

Introduced in 1993 for appointment and transfer of judges in constitutional courts, the Colllegium system, headed by Chief Justice of India, also consisted of four senior most judges of the Supreme Court. The Minister's criticism is absolutely not out of place as there is abject lack of transparency in its functioning since the grounds for selection and rejections remained largely unknown. Secondly, the Executive is absolutely barred from having any say in the process except the background check of individual candidates by the Intelligence Bureau. Thirdly, even if the Executive objects to recommendation of a name, it is left with no choice but to accept the proposal on reiteration of the decision by the Collegium.

However, the rule has often been observed in breach as Justice Lalit expressed concern over the pendency of recommendations, despite reiteration. He cited instance of a senior advocate from Karnataka High Court who, in exasperation, withdrew his consent as the government kept on sitting on his proposal for elevation as the High Court judge.

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On November 11, dealing with a plea by Advocates Association, Bengaluru, a division bench noted there are 11 cases pending with the government which were cleared by the Collegium and yet are awaiting appointments. Of these, the oldest of them is of September 04, 2021."This implies that the government neither appoints the persons and nor communicates its reservation, if any, on the names," it said, pointing out there are also 10 names, which have been reiterated since September 4, 2021 to July 18, 2022.

Observing that keeping the names pending is something not acceptable, the court said, the method of putting the names on hold, whether duly recommended or reiterated, is becoming some sort of a device to compel these persons to withdraw their names. The court went on observe unless the bench is adorned by competent lawyers very concept of Rule of Law and Justice suffers.

After taking over as 50 th CJI, Justice D Y Chandrachud, in an interview, accepted there is legitimate public interest in knowing how judges are appointed but there is also a need to preserve privacy of the people under consideration.

Going a step further, a bench led the CJI agreed to examine a writ petition filed by advocate Mathews J Nedumpara and others for doing away with the Collegium system for appointment of judges and revival of the NJAC.

"A mechanism in substitution of the Collegium is the need of the hour. The Collegium system of appointment of judges has resulted in the denial of equal opportunity for the petitioners and thousands of lawyers, deserving, eligible and meritorious," their plea said.

They claimed the current scenario, marred with the culture of entitlement and privilege, has become an exclusive province of a few dynasties.

A background check of 33 judges of the Supreme Court made by the National Lawyers Campaign for Judicial Transparency and Reforms in June, this year disclosed that only five judges were first general lawyers, all others belonged to family of judges, senior advocates etc.

DMK MP and senior advocate P Wilson has time and again highlighted the need for making the Collegium to take into consideration of candidates from diverse backgrounds including those from SC, ST and OBCs and the minority communities.

Pavani said the Collegium system is the by far the most suitable although its functioning could be made more transparent with time with legitimate and proper details accessible to everyone.

She also stressed the need for the Collegium to take into consideration women and persons from the third gender to ensure gender parity.

Terming the Minister's criticism as "very unfair", Pavani said, "We see the level of judges we appear before and I can say proudly most of them are learned people in the law with vast experience of life and through it’s interwoven interactions. They work so hard giving all their time and energy. A lot of sacrifices goes into becoming a judge and then to be blamed for the backlog is quite sad. I wish the law minister could do better by asking for a bigger budgetary allocation of funds and improve the infrastructure of the lower judiciary and have appointments made with better facilities, amenities and salaries for judges. If you make the post attractive with better emoluments, facilities and modern infrastructure you will be inviting the best minds to the Judiciary."

Apart from appointment, transfer of judges is another issue which has often seen Collegium and the government locking their horns. At times, Bar Associations also went on to lodge their protests. Last week's reported decision by the Collegium to transfer Madras high court acting chief justice T Raja, Telangana high court judge A Abhishek Reddy and Gujarat high court judge Nikhil S Kariel has triggered protest from Bar members in Telangana and Gujarat.

The Collegium’s recommendation of September 28 to transfer Orissa high court chief justice S Muralidhar as the chief justice of the Madras high court, has yet neither been accepted by the government nor returned back with objections if any.

Nedumpara said the transfer policy introduced in the early 1990s known as the 'one-third transfer policy' only contemplated the initial appointment to a state other than one's parent state.

"The policy was a non-discriminatory one, with no punitive element in it. And that worked exceedingly well. But when the Collegium system came into existence, the culture of kinship and entitlement secured dominance over transparency and public interest. The elite class of lawyers who stood to gain from the opaque practices could create the wrong impression the Bar is against transfer and that the independence of judiciary is at stake and that transfer necessarily amounts to a punitive step," he said.