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Confrontation over the Collegium system of appointing Judges to the Supreme Court and High Courts

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NJAC Collegium system law insider

Lokendra Malik

Published on: 15 January 2023 at 14:20 IST

Once again, the Central Government has attacked the collegium system of appointing judges to the Supreme Court and High Courts. This time the Supreme Court has also made some remarks about the government’s stand regarding the collegium system and delay in judicial appointments.

The Court has asked the Attorney-General to talk to the government to expedite the judicial appointments and follow the collegium system until Parliament makes a new law to replace the existing system of appointments. But the Union Law Minister seems to be determined to scrap the collegium system and is not ready to compromise on this issue.

It is crystal clear that the government needs more stake in the judicial appointments’ process to accommodate its own people in the judicial branch.

On the other hand, the Supreme Court does not want to give up its powers to appoint the judges to the constitutional courts to protect the collective interests of the judiciary. The public opinion seems to be divided on this important constitutional issue.

One school of constitutional pundits, legal scholars, and commentators supports the existing collegium system where there is another view which goes against the collegium system.

The author also believes that the time has come when the collegium system must go and Parliament should constitute a National Judicial Appointments Commission (NJAC) to select the judges in the Supreme Court and High Courts. The Chief Justice of India should be a member of the NJAC and meritorious people should be selected for judicial appointments.

Notably, ever since its commencement in 1993, the collegium system has been criticised by several legal luminaries and scholars in our country. It is widely believed that the collegium system is alien to our Constitution and the judiciary has no business to appoint the judges and the judiciary cannot usurp the powers to appoint the judges which belongs to the President of India under the constitutional scheme.

As the President is a constitutional head of the Union Government, the elected government headed by the Prime Minister is the key stakeholder in the entire process. However, the government needs to have an effective consultation with the CJI in making judicial appointments in the Supreme Court and High Courts.  

But, after 1993, the judiciary has left a little space for the executive under the collegium system as the government is bound to act on the recommendations made by the collegium. How can the judiciary monopolise the judicial appointments system? It cannot. The Constitution cannot be amended by the judiciary.

Nobody, who understands the Constitution properly, can digest the judiciary’s thesis. In one of his pieces published in The Hindu on 18 August 2012, Justice V. R. Krishna Iyer, a celebrated jurist, had strongly criticized the collegium system of appointing judges in these words: “Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own make the selection,”.

There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails. In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone”.

Justice Iyer’s words are very relevant even today when several people are raising objections against the decisions and decision-making process of the collegium. We need a better system to appoint the judges in the Supreme Court and High Courts.  

In his academic opinion, Justice Krishna Iyer had not only criticised the collegium system but had also suggested some measures to bring a new system to appoint the judges of the constitutional courts. Thus, he had emphasized the need to adopt a better criterion to select the judges for the constitutional courts.

This is what he had said: “In the process of selection, an investigation into the character, class bias, communal leanings, and any other imputations that members of the public may make, may have to be investigated. This has to be done not by the police, which function under the government, but by an independent secret investigation agency function under the commission’s control. These and other views expressed by outstanding critics may have to be considered”.

Further, Justice Krishna Iyer had strongly advocated the need to establish the National Judicial Appointments Commission to select the judges of the Supreme Court and High Courts under the leadership of the Chief Justice of India.

He had envisioned the commission in these insightful words: “The commission has to be totally independent and its ideology should be broadly in accord with the values of the Constitution,”.

It should naturally uphold the sovereignty of the Constitution beyond pressures from political parties and powerful corporations, and be prepared to act without fear or favour, affection, or ill-will. It should act independently-such should be its composition and operation,”.

The commission should be immune to legal proceedings, civil and criminal. It should be removed only by a high tribunal consisting of the Chief Justice of India and the Chief Justices of all the High Courts sitting together and deciding on any charges publicly made. We, the people of India, should have a free expression in the commission’s process.” Today, India needs such a system to appoint judges in the higher judiciary.

Notably, the Modi Government took a notice of collegium’s faulty process and replaced it with the National Judicial Appointments Commission (NJAC) in 2014 by amending the Constitution for making the appointments of judges of the Supreme Court and the High Courts more transparent and objective.

The NJAC was to be headed by the Chief Justice of India and had to comprise some other members such as two senior-most judges of the Supreme Court next after the CJI, Union Minister of Law and Justice, and two eminent jurists. But the Supreme Court did not allow the Central Government to eliminate the collegium system and struck down the constitutional amendment including the NJAC in 2015.

The Court observed that the NJAC hampered the independence of the judiciary, a basic feature of the Constitution.

However, the Supreme Court also admitted some faults in the collegium system’s working in the NJAC case. Justice Kurian Joseph, in his judgment, had exposed the loopholes of the collegium system in these words: “To that extent, I agree with Chelameswar, J. that the present collegium system lacks transparency, accountability, and objectivity,”.

The trust deficit has affected the credibility of the collegium system, as sometimes observed by the civil society. Quite often, the very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective,”.

Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the collegium seriously affecting the respect and dignity, if not, independence of judges, the court, particularly the Supreme Court, often being styled as the Court of the Collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time,”.

These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept up the expectations of the framers of the Constitution. Though one would not like to go into a detailed analysis of the reasons, I feel that it is not the trusteeship that failed, but the frailties of the trustees and the collaborators which failed the system. To me, it is a curable situation yet.”

It is not only the retired judges and legal scholars who have criticized the functioning of the collegium system, but a former President of India Mr. Pranab Mukherjee has also criticized this system strongly in his memoirs titled “The Presidential Years 2012-2017”. Mr. Mukherjee criticizes the collegium system in these words: “I have serious doubts over the present arrangement, and the judiciary ought to relook into the issue… is possible that the judiciary has come to mistrust the executive or the legislature and, therefore, does not want them to have decisive powers on the appointment of judges,”.

It does not, in its own words, wish to be caught in a ‘web of indebtedness’ through the NJAC. This mistrust is not good for the healthy administration of the country and should be avoided. Better communication between the parties concerned can help in dispelling such mistrust”. This is not an ordinary criticism.

It must be taken seriously. Recently, the Vice-President of India also criticized the collegium system and supported the idea of NJAC. The constitutional pundits believe that the Central Government will bring a new model of NJAC after a few months to replace the collegium system.

Since the NJAC verdict, nothing has changed on the ground and the collegium system is still working with great opacity and secrecy. The concerns raised by the judges in the NJAC case have not yet been addressed properly.

Nobody, except the three or five collegium members, as the case may be, knows what criteria it adopts to select the judges and how it rejects them. The collegium has not addressed the issues of diversity and inclusive judiciary.

There is too much nepotism in our judicial system. During the collegium system, the High Courts are functioning just like subordinate courts to the Apex Court. The collegium is very powerful and the government has become just a postman whose job is to implement the decisions of the collegium.

This is not good for the health of our constitutional system. Also, there is no remedy against the omissions and commissions of the collegium. Chances of judicial review against the collegium’s decisions are also remote.

The collegium is not accountable to any constitutional authority. The decisions of the collegium are not discussed by Parliament. It exercises huge powers without any checks and balances. Even the Full Court meetings of the Supreme Court are not held to discuss the collegium’s decisions, and resolutions.

An aggrieved judge, who is bypassed or rejected, has no remedy to redress his/her grievances. Who will judge the judge-makers? Who will ensure transparency in the decision-making process of the collegium? Has not the time come when Parliament should make better arrangements to appoint judges to the writ courts?

I think the time has come when Parliament should once again enact a law to replace the collegium system to make it more transparent, accountable, and inclusive? Can the Central Government remain a mute spectator or should it come forward, bring the issue before Parliament, and improve the appointment process of judges of the Supreme Court and High Courts? The Union Government and Parliament should make better arrangements for the appointments of judges to the higher judiciary to strengthen people’s faith in the institution of the judiciary and make it more inclusive.

The Supreme Court collegium cannot be the sole arbiter in making judicial appointments to the constitutional courts. The government is an essential stakeholder. The collegium system should be replaced by a National Judicial Appointments Commission to ensure appointments of meritorious persons in the higher judiciary.

Obviously, the Chief Justice of India should be empowered to head the NJAC, comprising a few other members from the judiciary, executive, legislature, and the bar. The consultation with the CJI should always be effective. Neither the government not the judiciary should be allowed to dominate the appointment process of judges.

Author- Lokendra Malik is Advocate at Supreme Court of India