Chorus Rises Again on Reining-in Unaccountable Collegium System

A five-judge bench overturned the 99th constitutional amendment which replaced the collegium system with NJAC.

For the reasons best known to the government, it changed its strategy to address the lacuna in collegium system of appointment of judges, which could presumably be removed by referring the issue to a larger nine-judge bench which had introduced this highly controversial mechanism in 1993.

During the hearing of a batch of petitions that sought major changes in the functioning of the opaque collegium system, which is in secrecy and out-of-bounds for the RTI Act, Attorney general Mukul Rohatgi, Solicitor General Ranjit Kumar, constitutional lawyer K K Venugopal and Fali S Nariman, among others, restricted their contentions to wholesome changes in the selection process as they refrained from asserting that this issue deserved consideration by a larger bench.

“There is a need for greater transparency in the appointment of judges for the higher judiciary through the collegium system,” they said unanimously in their perception about the mechanism which doesn’t find place in the Constitution.

A five-judge bench led by Justice J S Khehar that overturned the 99th constitutional amendment which replaced the role of collegium with a six-member high-power National Judicial Appointments Commission (NJAC) on October 16, had itself observed that the system they have chosen was neither fool-proof nor transparent, factors essential for independence of the judiciary.

All stakeholders, including the Union and state governments, lawyers and civil society groups have now been asked to submit their suggestions recommending improvements in the collegium system to Ranjit Kumar and another senior lawyer Arvind Datar.

In addition, a plethora of suggestions has been received by the judges who scrapped the NJAC. The suggestions are a strong indication that the collegium system is unfit to make meritorious selection of judges and it does suffer from various limitations, including being tilted in favour of incumbents who are relatives of judges or noted lawyers.

Better Judges Now?

• A five-judge bench overturned the 99th constitutional amendment which sough to replace collegium system with NJAC.
  
• The bench observed that the system was neither fool-proof nor transparent.
  
• Justice J S Khehar said collegium system isn’t infallible and requires major reforms.
  
• All stakeholders have now been asked to submit suggestions on improving the collegium system.

Eliminating ‘Uncle Judges’ Syndrome

When the collegium mechanism was felt as the only source to protect the judiciary from undue political interference, it was often said, “it’s important to know the law minister than the law.” The theme changed soon as judges started appointing judges, many of whom were suspected to be close relatives of men in the same fraternity.

The 230th Law Commission report of 2009 was categorical in its finding about the conduct of the collegium. “Sometimes it appears that this high office (HC Judge) is patronised.”

A person whose near relation or well-wisher is or had been a judge in the higher courts or is a senior advocate or is a political higher-up, stands a better chance of elevation

The 230th Law Commission report of 2009

“It is not necessary that such a person must be competent because sometimes even less competent persons are inducted. There is no dearth of such examples. Such persons should not be appointed, at least in the same HC,” the Commission said while pointing out that the “uncle judges” syndrome could be eliminated by not posting any judge in a high court where his also kin practices.

Noted constitutional lawyer P P Rao says the collegium system has been tried for two decades and it has proved to be “opaque, unsafe and unaccountable.” He feels collegium members are perceived to be guided by personal factors and indulge in give and take, compromising the quality of selection. “Keeping the executive out of the selection process is not at all desirable,” he added.

Reforms Needed

There’s no doubt that government is a coordinate wing of the state and is the appointing authority. Therefore, it is necessary to co-opt the law minister as a collegium member without a right to vote so that with his inputs the recommendations would go through smoothly.

While Justice Khehar has already admitted that the collegium system isn’t infallible and requires major reforms, Justice Kurian Joseph who had, though, quashed NJAC as unconstitutional, phrased his own view points about the conduct of this mechanism as alien to any country.

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.

Justice Khehar had said in a separate judgment.

He also said 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.”

(The writer is a Delhi-based senior journalist)