QUESTIONS TO COLLEGIUM

The New Year saw the signs of sparks of clash between the judiciary and executive which were doused by a tactical retreat of the executive when the Supreme Court confronted the government on the abnormal delay in the appointment of judges despite the collegium’s clearance. The promise of the Centre to adhere to the timelines set by SC as the bench pointed out “limited role for the government that can prevent appointments or transfers of judges” as long as the collegium system exists.

That the collegium system is under debate and questions are being raised on the functioning of that is also known to the judges. Highly placed functionaries and intellectuals are questioning the very creation of collegium system and its functioning is well known. Learned Judge Sanjay Kishan Kaul himself conceded that when he said that “nobody says that this (collegium) is a perfect system”. As Justice Kaul added “nor the replacement system be perfect” the debate on collegium is justified.

The collegium system is is termed as “opaque and not accountable “by the minister for Law and Justice Kiran Rijiju. He even went to the extent of blaming judges as “preoccupied with deciding who will be the next judge” ignoring their primary duty of administering the justice. The vice-president of India Jagdeep Dhankhar has stated that collegium system is nowhere in the world and even castigated the judiciary which in his opinion is positioning itself as notch above the executive and parliament, the other two pillars of democratic edifice in the country.

The Supreme Court, which thinks that it is supreme as far as appointment of judges goes, justifies the collegium system which it has created in late 1990s. Successive chief justices of India defended it saying that “it is more democratic” and “most transparent institution” and “it shouldn’t be derailed on the basis of statements of some”. While the judges were defending the collegium system and its role in picking up judges what actually questioned is the very validation of collegium system.

The constitution of India has not envisaged the collegium and as such the authority of appointing the judges vested with the executive and that executive appointed judges acted independently and gave many landmark judgments which shaped India. Though there were aberrations during the regime of Indira Gandhi where the term “committed judiciary” was popularized by the Congress party, the independence of judiciary remained unquestioned. The judges who were superseded have put in the papers and left the bench thus exposing the narrow-mindedness of executive. The judicial appointments were perceived as politically motivated and got challenged in 1981. Even then the Supreme Court felt that in the event of differences between the executive and Chief Justice, the executive decision would prevail. After a decade of that decision Supreme Court came with the view that judicial independence is part of unamendable basic structure of constitution and to protect that independence judiciary must have ‘primacy’ over the appointment of judges. It was through this decision of SC that collegium came into existence and the structure of collegium having Chief Justice of India and the four senior most judges as members of collegium.

The SC created collegium system is not found out to be above comment. There were many criticisms on the names of the collegium picked up judges as “nepotism” allegation against collegium members has cropped up now and then. The Narendra Modi lead government addressed the allegations against collegium by coming out with National Judicial Appointments Commission (NJAC) Bill which became an Act with the unanimous approval of the parliament. The NJAC comprising CJ of India, two senior most judges of the Supreme Court, union Law minister and two eminent persons to be selected by  committee consisting of prime minister and the leader of the opposition in the Lok Sabha. The Act further said that at least one eminent person would be member of the SC/ST/OBC/ religious minorities or woman. This 2014 Act was struck down by the Supreme Court with alacrity, which was not exhibited in other cases, saying that “it violated the basic structure of the constitution and the new procedure will have the political influence which it felt will impede the judicial independence. It was this judgment which the Vice-President Jagdeep Dhankar called as “an instance of severe compromise of parliamentary sovereignty and there was no parallel to such a development in the democratic history where duly legitimized constitutional prescription has been judicially undone”.

Collegium is criticized for not working in the transparent manner. Why a particular candidate was picked as a suitable one and why someone else thought to be unfit for the post of judge is not made public. Even the RTI application on the deliberations of collegium is rejected and it said the final decision is enough and it is placed in the public domain. Why the collegium keeps its acts as secretive when the judges on the benches reaches transparency to every government wings and even summoned the note files while dealing with the petetions on the note ban. That personal details or data of the candidates is not made public with the collegium saying that “it violates the right to privacy and the principle of confidentiality”. It is this secretive mode of working which is not liked by intellectuals who say that “collegium decisions are unpredictable and several judges were superseded with seniors not getting their due in this collegium system”. A particular judge whose name was recommended by the collegium for the SC bench found out to be 42nd in the seniority and that was objected by the union government and his name was not cleared. The collegium insisting on that judge’s name to be cleared became bone of contention between the judiciary and executive. In the absence of transparency the collegium is accused of ‘favouritism’. In some of the recommendations of collegium the executive was found to be right as the collegium subsequently retracted its recommendation of some names. The collegium system is criticized for its uncle-judge syndrome as relatives of the judges were recommended to various positions. In some cases the personal issues involving fellow junior judges in the past also formed a barrier in clearance by the collegium members.

The recent parliamentary panel of the Law ministry brought out the “lack of social diversity” in the recommendation of the collegium. The report said “that 79% of all high court judges appointed during 2018-2022 are from upper castes”. The panel felt that “OBCs continue to be discriminated against as they formed only 11% of positions on the benches. Minorities at 2.6%, SCs at 2.8% and STs at 1.3% formed the social composition. This report though not specifically talked about the nepotism by collegium but it certainly forms the basis for the continued circulation of criticism against collegium.

Not that everything with collegium is wrong and executive is right in all aspects, but new system should certainly be better than the old one, and that is what a commoner expects. But here the executive appointed judges were better performance wise as per many legal luminaries including the senior counsel Harish Salve. If the new system, the collegium, has not improved the quality of judges but faced the flack in appointments then collegium certainly needs a new look and that is what many feel.

A public narrative may have to be created before Narendra Modi government embarks on a newer version of NJAC protecting it with inherent immunity from possible adverse ruling by the judiciary. Judges appointment shouldn’t be the monopoly of neither executive nor the judiciary. There should be wider consultation among the ministry of Law and also CJI. A process where the process of selection and appointment of judges is fairer and also the benches have social balance. Hope wiser councils will prevail in judiciary and executive to avoid the friction between the two important pillars and middle acceptable path will found in neat future.

By Dr. Duggaraju Srinivasa Rao