Q) The subjectivity and the inconsistency of the collegium system highlight the need to relook at the process of appointment of judges. Substantiate.
Why this question?
Issue of current importance.
Key demand of the Question
The answer must discuss the factors that have made collegium a flawed system.
Substantiate – When you are asked to Substantiate, you have to pass a sound judgement about the truth of the given statement in the question or the topic based on evidence. You have to appraise the worth of the statement in question using suitable case studies or/ and examples.
Start with what you understand by the collegium system.
In the first part, discuss why the collegium system was introduced in the first place and has it been able to achieve the objectives.
In the next part, discuss the criticisms of the Collegium System. Present suggestions to address these flaws.
Conclude that reforming the collegium system is a good step in the right direction
The judges of the Supreme Court and High Court in India are appointed by the President as per article 124(2) and 217 of the constitution. In such appointment, the President is required to hold consultation with such of the Judges of the Supreme Court and of the High Courts in the States as he may deem necessary for the purpose.
The Collegium System is a system under which appointments/elevation of judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex Court are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. The collegium of judges is the Supreme Court’s invention. It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation. In effect, it is a system under which judges are appointed by an institution comprising judges. The recommendations of the Collegium are binding on the Central Government, if the Collegium sends the names of the judges/lawyers to the government for the second time.
Need for reforms in the Collegium system:
- Credibility of the SC: Controversial collegium system of judicial appointments undermines the independence of judges and raises doubts about the credibility of the highest court. There is a failure to make an assessment of the personality of the contemnor at the time of recommending his name for elevation. Eg: The controversy over the proposed elevation of Justice P.D. Dinakaran of the Karnataka High Court to the Supreme Court by the collegium of the Chief Justice and four senior-most judges of the Supreme Court was criticised for overlooking apparently suitable judges by the collegiums. The executive has little or no role in the appointment of judges as a result.
- Nepotism: There have been cases where the nearest relative of Supreme Court judges has been appointed as a high court judge, ignoring merit. During the regime of Chief Justice Ranjan Gogoi, judges far lower in the combined All India Seniority of High Court judges were appointed to SC, and the reason assigned was that those selected were found more meritorious.
- Supreme court is overburdened: The SC did not realise the burden it was imposing on the collegium of selecting judges for the SC and HCs and transferring them from one HC to another. An administrative task of this magnitude must necessarily detract the judges of the collegium from their principal judicial work of hearing and deciding cases.
- Lack of Transparency: The lack of a written manual for functioning, the absence of selection criteria, the arbitrary reversal of decisions already taken, the selective publication of records of meetings proves the opaqueness of the collegium system. The system often overlooks several talented junior judges and advocates.
- Lack of Consensus among Members: The collegium members often face the issue of mutual consent regarding appointment of judges. The shadow of mistrust between the members of the collegium exposes the fault lines within the judiciary. For instance, recently retired CJI Sharad A. Bobde was perhaps the first chief justice to have not made even a single recommendation for appointment as SC judge due to lack of consensus among the collegium members.
- Unequal Representation: The other area of concern is the composition of the higher judiciary. While data regarding caste is not available, women are fairly underrepresented in the higher judiciary.
- Delay in Judicial Appointments: The process of judicial appointment is delayed due to delay in recommendations by the collegium for the higher judiciary.
Reforms needed in the collegium system:
- Revisit the existing system through a transparent and participatory procedure, preferably by an independent broad-based constitutional body guaranteeing judicial primacy but not judicial exclusivity.
- The collegium members have to make a fresh start and engage with each other.
- A transparent process adds accountability that is much needed to resolve the deadlock.
- The new system should ensure independence, reflect diversity, demonstrate professional competence and integrity.
- The system needs to establish a body which is independent and objective in the selection process. In several countries of the Commonwealth, National Judicial Appointment Commissions have been established to select judges.
- Setting up a constitutional body accommodating the federal concept of diversity and independence of judiciary for appointment of judges to the higher judiciary can also be thought of as an alternate measure.
- There should be a fixed time limit for approval of recommendations.
- As of now, instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President for appointment in order of preference and other valid criteria.
Faced with intense public scrutiny and government pressure, the judiciary’s institutional weaknesses are being laid bare. These are not simply the moral failings of one individual or the consequences of the misjudgement of a few. It is another illustration of the institution’s inability to accept its internal infirmities.