The Law Minister Kiren Rijiju’s recent statement about the opacity of the collegium process for the appointment of the higher judiciary has once again ignited a debate on the subject. The authors of this article look at the history of judicial appointments in India in light of this statement and the road ahead.
Background: A Look at the Collegium System's Journey
The Indian republic is built on a foundation of a separation of powers between three branches of government. Judicial power is vested with courts which are supposed to be a bulwark against the excesses of the legislature and the executive.
Given this crucial role, it is essential that the judiciary as an institution be insulated from the pulls and pressures of majoritarian politics and executive influence.
One way to guarantee the independence of the judiciary is by ensuring that the process of appointing judges is fair, transparent and independent of electoral majorities, leading to the selection of judges who are technically competent and socially diverse.
The Indian Constitution does not elaborate on the process of appointing Supreme Court and High Court judges. Article 124(2)of the Constitution provides for judicial appointments to be made by the President (in other words, the executive), based on “consultation” with as many judges of the Supreme Court as the President may think is needed.
In the 1970s, an increasingly authoritarian executive sought to undermine the independence of the judiciary, the pinnacle of which was during the Emergency. During this time, the Supreme Court was packed with chosen “committed judges”. The resulting loss of credibility and trust prompted the judiciary to go out of its way to keep the executive out by asserting their control over judicial appointments subsequently.
SP Gupta v. Union of India, 1981 (known as the First Judges Case) held that the term “consultation” used in Article 124 did not mean “concurrence”.
In Supreme Court Advocates-on-Record Association v. Union of India, 1993 (the Second Judges Case) the Supreme Court reversed this position and held that Article 124 of the Constitution actually required the “concurrence” of the chief justice and the two senior-most judges.
In Re Special Reference No 1 of 1998, (the Third Judges Case) prescribed a process for appointing and transferring Supreme Court and High Court judges through what we know today as the collegium system. This collegium is made up of the four senior-most puisne judges of the Supreme Court.
The tension between the executive and the judiciary on matters of appointment have always remained simmering under the surface. In 2014, in a show of rare unity, parliamentarians across party lines passed the 99th Amendment to the Constitution and the National Judicial Appointments Commission (NJAC) Act.
The NJAC was to consist of the Chief Justice of India, two senior-most Supreme Court judges, the Union Law Minister and two eminent persons. Unsurprisingly, the amendment and law were challenged before the Supreme Court.
The Court held that judicial primacy in judicial appointments is part of the basic structure since it is an integral facet of judicial independence. The amendment and Act were struck down, and the collegium system was resuscitated.
The Fear of Executive Dominance
The concern regarding executive dominance affecting the independence of the judiciary is relevant.
We cannot forget past instances of egregious violation of the doctrine of separation of powers – such as in the 1970s when the union government used judicial appointments and transfers as a tool to dominate the judiciary and to discourage judicial pronouncements unfavourable to it.
Executive dominance in judicial appointments is a significant threat to judicial independence. Interpreting Article 124 to simply mean that the government should appoint judges as the Law Minister recently suggested, is to turn a blind eye to history and the principles of democracy.
However, executive dominance is only one threat to judicial independence. True decisional independence of a judge comes from the security of being immune to the biases of the government, senior judges, fellow judges, members of the bar, the media and other sources of undue influence.
The collegium system's ability to achieve optimal judicial independence cannot be assessed on the ground of minimising executive dominance alone.
In any event, it is naive to believe that there is currently no executive interference in judicial appointments under the collegium system. The Union Government is allowed to ask the collegium to reconsider the elevation or transfer of any particular judge and has done so several times in the recent past.
If on reconsideration, the collegium reiterates the recommendation, the Union Government is bound to make the appointment.
However, since there is no time limit for such appointments, the Union Government has delayed the appointments indefinitely in cases effectively blocking the decision of the collegium.
But this is not to say that problems do not exist within the collegium system, only that allocating the power of judicial appointments to the government will put the independence of the judiciary in peril.
So what are the problems within the collegium system?
The Rule of Law and Transparency
The objections to the collegium system require a deeper understanding of the rule of law and limited government. Our Constitution and democracy are based on a system of checks and balances that prevent the concentration of power in any one institution or individual.
This is achieved by placing persons with conflicting interests in positions of power over one another in different arenas. It can also be achieved by specifying rules to reduce individual discretion and by making processes transparent to increase accountability.
The collegium system is found wanting in these aspects. There are no clear guidelines on how the collegium should decide on appointments apart from the entire process being opaque.
The collegium resolutions have been uploaded on the Supreme Court website since 2017. Between 2017 and 2019 some of their resolutions had some details about the process and the judges involved.
For example, the 3 October 2017 resolution regarding the appointment of three judicial officers as judges of the Kerala High Court goes into details of the candidature of each judicial officer and describes the collegium’s process.
However, the resolution does not provide reasons for selecting these judges or for rejecting any others. Understandably, the collegium may be reluctant to reveal reasons for rejection, but reasons for selection should be made public.
Unfortunately, since 2019, even these details have vanished, and the uploading of the resolutions on the website has become a perfunctory activity.
For example, the statement of the collegium dated 28 September, 2022 only states that Justice Jaswant Singh, Justice P.B. Varale and Justice Ali Mohammad Magrey will be appointed as Chief Justices of Orissa, Karnataka and J&K, respectively. No other details are provided.
There has been a demand for some transparency in the past. For instance, the government proposed that the collegium provide written reasons to support its nominations and record objections to selections. The Court has rejected all these government proposals.
As a result, citizens have no way of knowing how or why certain judges are selected for elevation or transferred. Judicial appointments continue to remain shrouded in secrecy while other branches of government are subject to the glare of the Right to Information Act and other accountability measures.
Lack of Accountability
The issue of judicial appointments, and in turn, judicial independence, extends beyond the power axis of the judiciary versus the executive. We can consider, for instance, the hierarchy between the Supreme Court and the High Courts. Except for the power of hearing appeals from High Courts, the Supreme Court is not “superior” to the High Courts.
In the constitutional scheme, all courts of record, ie, the High Courts and Supreme Court are independent power centres without a hierarchical administrative structure. Each High Court expressly has the power of superintendence over all “subordinate” courts in its jurisdiction. Notably, the Supreme Court has no such power of superintendence over the High Courts and was never envisaged to be superior in administration.
The collegium system, however, erodes this design by placing an enormous amount of discretion in the hands of a few Supreme Court judges over the fate of High Court judges. What now of the independence of the High Court? Diversity is another casualty.
As per the database of the higher judicary maintained with the Ministry of Law and Justice as on September 1 2021, 11.2 per cent of Supreme Court and High Court judges were women. During the period Justice Ramana was Chief Justice, 80% of the judges appointed were upper caste Hindus. Supreme Court judges are elevated either from the bar or from the High Court judiciary. Even though “distinguished jurists” can become Supreme Court judges but not once has a jurist or scholar become a judge.
Right from the widely criticised instance of Justice Gogoi trying to decide his own case involving allegations of sexual harassment against him to the dismissal of objections in the NJAC case that Justice Khehar is himself a part of the collegium and therefore has a conflict of interest in deciding the NJAC case, there is a worrying trend of judicial exceptionalism and a refusal by judges to be accountable. This is further marked by contempt cases to quell criticism of the judiciary from civil society and the bar.
Given this tendency of many members of the higher judiciary to consolidate their powers and the unmissable lack of diversity amongst judges, the time is ripe to ask questions regarding the protection of judicial independence from the biases of one elite set of judges, instead of characterising it only as an issue of executive dominance.
Looking Beyond the Collegium System
The Law Minister is right in asserting that there is an increasing sense of unease regarding the collegium system.
While leaving judicial appointments up to the government is certainly not an answer, a debate on the collegium system is long overdue. The process of appointing judges for the higher judiciary should be based on publicly known criteria such as merit and diversity.
All proceedings and the opinions of each member of the judicial appointment body should be recorded and accessible to the public. Finally, participation of lay persons or executive authorities in the appointment process should be welcomed.
The concern of executive dominance can be allayed through majority representation from the judicial side or involvement of the opposition leader. However, removing non-judicial members entirely from this process is unwarranted.
(Anindita Pattanayak is a lawyer and research fellow with DAKSH, Bangalore and Leah Verghese, research manager at DAKSH, is also a Fulbright-Nehru Fellow and graduate of Columbia University. This is an opinion piece and the views expressed above are the authors' own. The Quint neither endorses nor is responsible for the same.)