Collegium system of appointment needs a rethink

Sankar Sen

Ex-Director, National Police Academy

THE Union Government and the Supreme Court are at loggerheads over the delay in the appointment of judges in the Supreme Court and High Courts. The apex court has held the government responsible for delaying the process and the government is blaming the collegium system for the present state of affairs. Criticising the collegium arrangement, Union Law Minister Kiren Rijiju said it was opaque and unconstitutional.

Article 124 of the Constitution vests the power of appointment of the Chief Justice and the judges of the Supreme Court in the President. The Constitution provides for the President to make these appointments after consultation with the judges of the Supreme Court and High Courts that he or she deems necessary. The Constitution provides for after-consultation and not in-consultation in the case of appointment of judges other than the Chief Justice of India (CJI).

The appointment of High Court judges is made by the President in consultation with the CJI and the state Governor concerned. But, in the Second Judges’ case (1993), the Supreme Court ruled that the recommendations of the CJI along with his four senior-most colleagues were binding on the President. It was almost an attempt by the judiciary to rewrite the law thorough its judgment.

In 1999, the President sought the opinion of the SC related to issues concerning the appointment of SC judges and transfer of High Court judges. A nine-judge Bench of the court reiterated the opinion as laid down in 1993 and held that primacy is to be given to the opinion of the Chief Justice. The CJI should consult a collegium consisting of four senior-most members of the Supreme Court before making the recommendations. The procedure for selection by the collegium has not always been regarded as fair and transparent and, as a result, some of the judges chosen by the collegium have not inspired public confidence. The late Justice Krishna Iyer had called the arrangement “incestuous”.

Except during the Emergency, right from 1950, the appointments of judges were broadly based on the basis of the recommendations of the Chief Justice of India and the state High Court and rarely any appointment was made without the concurrence of the CJI. Former Chief Justice JS Verma, who in 1993 wrote the judgment that created the collegium system, had later said he had “changed his mind and veered round to the view that a National Judicial Commission which gives a role to the executive in the appointment of judges is a better alternative.” Another former Chief Justice, AM Ahmadi, who had opposed the collegium system by writing a dissenting judgment, favoured a reversion to the pre-collegium mechanism as there were serious concerns about the effectiveness of the present system.

It may be borne in mind that in the Constituent Assembly, the amendment to introduce the concurrence of the CJI in the appointment procedure of the judges was defeated. But, strangely, in the Second Judges’ case, the Supreme Court decided that consultation as envisaged in Article 124(2) of the Constitution means concurrence. This, perhaps, is not the correct interpretation.

The present Chief Justice, DY Chandrachud, in a riposte to the Law Minister’s criticism of the collegium system, said, “The executive must show constitutional statesmanship and avoid public grandstanding on the issue.” According to him, the collegium system ensures independence of the judiciary by ensuring that the recommendations for appointment are free of external influence. He, however, conceded that no constitutional institution or arrangement suffering due to lack of adequate information can be a model and we need to strengthen the collegium system.

There is now growing consensus that a National Judicial Commission should be constituted for the selection of judges. The argument that involving persons other than judges in the selection of judges will open the way for external pressure is too simplistic. The Parliamentary Standing Committee on Law and Justice expressed serious concern about the effectiveness of the present system. One of the worst examples of the wrong selection of judges under the collegium system was the appointment of Soumitra Sen as a Calcutta High Court Judge in 2006 even when there were allegations that he misappropriated funds while serving as a court-appointed lawyer in a dispute between two public sector undertakings. The collegium cleared his appointment and withheld knowledge about the person whom they were going to elevate as a judge.

The appointment of judges in other countries holds a lesson for India. In the UK, an independent institution called the Judicial Appointments Commission looks after the appointment of judges in courts and tribunals. Of its 15 members, three are from the judges’ community and the others, including the Chairman, are appointed through open competition.

In the US, the judges of the federal courts are appointed by the President with the advice and consent of the Senate. In South Africa, the President appoints the judges after consulting the Judicial Service Commission.

In the Fourth Judges’ case (2015), the apex court considered the validity of the 99th Constitutional Amendment creating the National Judicial Appointments Commission (NJAC). The court struck it down as unconstitutional and viewed it as a violation of the independence of the judiciary. The executive has not reconciled itself to the rejection of the NJAC and is now going slow in approving the recommendations of the collegium even in cases of reiteration of recommendations. It is not looking at the larger picture, which is quite frustrating. Despite a 2020 judgment that fixed timelines to clear appointments, recommendations remain stuck at the government’s end. Such delays cause pendency of cases, making promising candidates reluctant to join the judiciary.

This executive-judiciary confrontation does not augur well for our democratic order and will adversely affect the smooth functioning of both. Independence of the judiciary is a categorical imperative for democracy and there should be no compromise over this fundamental issue. However, the judiciary must also avoid overreach and look within to make itself more accountable and transparent.

Join Whatsapp Channel of The Tribune for latest updates.