Opening the collegium doors
IMAGINE a world where a collegium determines appointments in all jobs — there is every possibility of about two-thirds of all top jobs going to the children and relatives of those who held the positions earlier. Had there been a collegium of editors appointing other editors, most of the incumbents who now edit newspapers, TV channels and websites would not have been there. The same is the case with the bureaucratic executive, the academia and much else. Where the collegium system is in place, as in politics, we have a Jawaharlal Nehru “electing” his daughter as Congress president in 1959, or leaders of the BJP, regional parties and even Marxists offering their children and children-in-law positions of power in the party organisation or the government. If dynastic succession is wrong in politics, it ought to be wrong in every constitutional institution.
If dynastic succession is wrong in politics, it ought to be wrong in every constitutional institution.
Even the greatest critics of the National Judicial Appointments Commission (NJAC) would agree in private that the present collegium system is opaque and leads to nepotism. Under it, nobody gets to know who are being considered and why. The Chief Justice and two senior-most judges of the High Court sit and decide who to appoint as judges of the HC. After deciding the names, the list is sent to the SC and the Law Ministry, which in turn sends it for the Intelligence Bureau’s vetting. That is the interface with the executive, which takes its pound of flesh. Finally, the word of the three wise men prevails and their decision is not justiciable. No brilliant lawyer who missed the opportunity of becoming a judge can now approach the Bench for redressal, pointing out the number of cases, the variety of cases, the outcome of cases they contested, or the breadth of her court skills or the depth of his scholarship.
The same is the case with the Supreme Court. Even a former Supreme Court judge recently sought the details of the collegium deliberations, which were denied to the public at large. For a judiciary that, rightly, looks at all things public — particularly appointments and promotions to important public offices — complete transparency and public hearings are required to rectify infirmities, if any. The blind critics of NJAC have a point when they insist that it is just the present collegium plus the political leadership. They believe that in a one-party rule, the word of the Prime Minister carries such weight that it would be difficult for others to not acquiesce. Yet, the NJAC is better than a collegium because the Opposition leader or one of the two eminent personalities nominated can always point out gross injustice or nepotism, if any.
To counter the NJAC, the reform suggestion offered by some collegium votaries is to involve the full court in the process of appointments, hoping that by opening the doors and windows of the collegium and shedding light on the whole process, it could be salvaged. A confirmatory hearing would add a lot of credibility to the process. Yet, the principle of generals appointing generals or bureaucrats appointing bureaucrats or ministers appointing ministers (without elections) goes against the grain of democratic norms of appointments to high office. The process has to become completely transparent for our judiciary to become fully credible. There should not be even an iota of doubt in the minds of the members of the Bar, litigants or the public at large about how and why a judge was appointed.
The best option could be an All India Judicial Service (AIJS), to be appointed on the lines of other All India Services, with the Union Public Service Commission or the NJAC conducting the exam that leads to the appointment of lawyers with a minimum of seven years of practice as Additional District Judges all over the country. A large number of the members of this service should go up to the High Court and then to the Supreme Court, and the number of those getting elevated from the Bar should be reduced to less than one-third of the total intake. This would immediately bring uniformity to the quality of our judicial officers. Also, there should be no systemic hurdles for AIJS officers to become Chiefs of High Courts or even the Supreme Court. If a lawyer is elevated from the Bar at the age of 45, a district judge should be given the same age advantage so that he or she can also head a Bench.
The biggest argument against promotion from the service is lack of court skills and opportunity to have argued original matters dealt with only by constitutional courts, and the gravitas of High/Supreme Court experience. All these can be overcome by making this experience part of the eligibility criteria to appear for the AIJS exam, or by offering district judges opportunities to work at High/Supreme Courts. The advantage of having more judicial officers from the service getting promoted is that their conduct would have been under the scanner of the High Court all through their careers, with any deviance strictly punished or at the very least noticed. If their Annual Confidential Reports become the basic criterion, with a points system on disposal of cases and quality of judgments, the appointment to the High Court could become more merit-oriented and transparent.
Anything arbitrary is anathema to the rule of law and the concept of justice. However, the present-day appointment of judges is nothing but arbitrary. The judiciary has insisted on a system for promotion of IPS officers to the post of the Director General of Police of every state. Similarly, a broad-based body should examine the merits of a candidate and, if possible, interview or ‘hear’ a candidate based on a system of points before appointing him or her to the exalted office of the High Court. As for the politicos who now oppose the NJAC after supporting it in 2014, all one can say is that partisan politics cannot become the determining factor in a debate on fair and just judicial appointments.
