Transparency In The Judiciary Vis A Vis Collegium System – A Disconcerted Issue

by Aditya Mehrotra

Introduction

Ambedkar presided over the deliberations in India’s Constituent Assembly that resulted in the Constitution of India. This reflected the wide agreement of the Indian National Congress-led movement. Despite differences and conflicts, this was not a pragmatic political compromise devoid of passion and dedication; rather, it was a compact built on mutual trust that allowed diverse underlying methods and viewpoints to be resolved with sensitivity and understanding.

Similarly, the independence of the judiciary is essential for a democratic nation like India. The Constitution of India regulates the procedure for appointing judges to this renowned institution. However, since the Constitution does not provide a mechanism, the nominations were made via the collegium system, which was often criticized.

Union law minister Kiren Rijiju has sparked a controversy by claiming that judges spend half their time deciding who to appoint as judges rather than delivering justice. He described the collegium system as “opaque” and the Indian selection system as the only one in which judges appoint judges, which former judges deemed “unjustified.” In his statements at an event in Ahmedabad called Sabarmati Samvad, organized by the weekly magazine Panchajanya, the minister said that 40 to 50 attorneys had developed a “monopoly” in the Supreme Court just because they speak English well. “A judge’s principal responsibility is to administer justice to the populace. As a law minister, I see that half of the judges’ time is spent determining who will become the next judge, rather than dispensing justice”,Rijiju remarked.

In India, however, judicial institutions have always yielded to political commitments owing to the executive’s veto authority over judge nominations. Consequently, guarantee of a non-political court has always been contested. This led to a nine-judge bench developing the self-serving idea of “collegium” in which the Chief Justice of India and the four most senior justices of the Supreme Court should have the last word in Supreme Court nominations. 

Unfortunately, even this method has been shown to be problematic due to a multiplicity of arbitrary and contentious appointments and the lack of a way to monitor these appointments. Evidently anticipating this fight for dominance, the founding writers of our Constitution included a joint procedure involving both the administration and the judiciary in choosing the justices of the Supreme Court and the High Courts. 

Taking the Intent of the Constituent Assembly debates in purview

In the Memorandum of Union Constitution given a few days later, Sri B.N. Rau, the Constitutional Advisor, proposed that the Judges be selected by the President with the consent of at least two-thirds of the Council of States, of which the Chief Justice of India was an ex-officio member. Even the Union Constitution Committee disagreed with the Ad Hoc Committee and proposed that “a Judge of the Supreme Court shall be appointed by the President after consulting the Chief Justice and such other judges of the Supreme Court as well as such judges of the High Courts as may be required for the purpose.”

Why should it not be feasible for the President, if required, to designate a distinguished jurist? In the Assembly, Kamath further emphasized, In fact, I would recommend that one of the seven judges be a distinguished jurist. According to my esteemed friend, Shri Alladi, whom I contacted, Philip Frankfurter was appointed by President Roosevelt in the United States many years ago. He was an instructor at Harvard University. That was an innovative experiment he conducted. Prior to that, barristers and members of the judiciary were selected. This experiment has been a tremendous success. If we connect the views of Kamath in the Constituent Assembly having expressed support for a distinguished jurist and the National Judicial Appointment Commission that was proposed by the Government of India, we would find that they lie in consonance because the NJAC expressed in literal terms the inclusion of a distinguished jurist in its composition but as the Courts would have it in Supreme Courts Advocates on Record Association vs. Union of India, the NJAC also tabled as 99th Constitutional Amendment Bill was struck down due to being violative of the Doctrine of Basic Structure of the Indian Constitution thereby rejecting the core vision of what NJAC proposed.

Judicial Developments

The supersession of the three judges in 1973 was a consequence of their anti-government rulings in the infamous Kesavananda Bharti case, and they were “granted” supersession the very next day after delivering their rulings. In addition, Ray J. had decided in favour of the government in the Bank Nationalization case and was one of two dissenting judges in the Privy Purse case. After the supersession episode, the court was compelled to ensure its long-term independence. In the First Judges Case, the Supreme Court determined that the phrase ‘consultation’ in Articles 124 and 217 does not imply ‘concurrence,’ and that the union government may reject the CJI’s proposal if the two authorities disagree. The constitutional framework was preserved, and the executive’s pre-eminence over the chief justice was established.

In the Second Judges Case, the Supreme Court declared that in the event of a disagreement of opinion between the CJI and the President, the nomination made by the Chief Justice should prevail and be conclusive. The nine-judge panel reversed the SP Gupta judgement and established judges’ pre-eminence in the selection of judges to the higher court. It created the Collegium, which consists of the CJI and the two most senior supreme court justices. Through their assumptions and presumptions, the justices sitting over the bench concluded that a CJI knew the value of a judge to be nominated to the higher courts and judged it appropriate to make his proposal compulsory.

The bench construed consultation to imply consent in articles 124(2) and 217. It eliminated any vestiges of the executive from the recommendation process and likened its involvement to “germs of insubordination in the court.” The executive may only request that the collegium reconsider the names, and if they are repeated, it is obligated to make the appointments.

Thus, the Second Judges Case gave rise to the Collegium System. It was described as a body comprising of the Chief Justice of India, the two most senior Supreme Court judges, and the two most senior High Court judges in issues of Supreme Court and High Court appointments, respectively.

The Third Judges Case maintained the earlier ruling and expanded the collegium of judges to include the Chief Justice of India and four senior judges. In this decision, the Supreme Court established nine principles for quorum functioning. This case addressed the question of whether the term “consultation of CJI” refers to consultation by a panel of justices or to the CJI’s view alone. The court ruled that even if two of five justices had a negative view, the CJI could not propose the names. In addition, it was determined that for situations involving high courts, the judges from that specific high court may be consulted.

Very recently, In Supreme Court Advocates-on-Record Assn. v. Union of India (4th Judges case), the 99th amendment to the Constitution of India was ruled to violate its fundamental structure by a 4:3 vote. The 2014 NJAC Act, which resulted from the 99th amendment, was likewise ruled illegal. The Supreme Court’s decision was founded on the notion of the Constitution’s “Basic Structure” as articulated in the Keshavananda Bharati case. The Court ruled that modifications to the Constitution could never contradict the Constitution’s fundamental framework. According to the majority, the 99th Constitution Amendment negatively impacts the fundamental structure of the Constitution by bringing substantial changes to the nomination of judges to the Supreme Court and the High Courts by revising Articles 124 and 217. According to the Court, the aforementioned modifications “significantly endangered the independence of the judiciary,” and hence, the said Constitution Amendment is unconstitutional.

Opacity in the Collegium System

By drawing an inference with the Judicial developments, we can infer that, Without a transparent method for appointing judges, the collegium system lacks the confidence and legitimacy to be recognized by all parties involved in the judicial system. Simply announcing that the members of the collegium would behave in an open way will not promote transparency. It will have to be proved through the selection procedure for judges used by the judiciary. Lack of openness and absence of explicit standards have various unsettling consequences. 

Currently, there is no standardized procedure for determining whether a judge proposed by the collegium has a conflict of interest. This is crucial in light of the fact that the collegium has been plagued by accusations of various forms of purported conflicts of interest between its members and the persons they have chosen to become judges of the High Courts and the Supreme Court. 

One of the most crucial difficulties with the collegium system is the full exclusion of the people and their representatives from the nomination process. In the collegium, there are no rules to retain even a shred of integrity and validity. Precisely, this system is a well-kept secret with no written manual for operation, no predetermined selection criteria, and no release of meeting minutes, giving its members a disproportionate amount of authority.

Judicial Primacy in Appointments cannot be classified to be a Basic Structure of the Constitution

The existing manner of judicial nominations has been considered as a fundamental part of the Constitution. The appointment method for judges is just a component of the independence of the judiciary, which is a part of the Constitution’s fundamental structure. If the ability to choose judges is placed only in the administration, then judges, in an effort to satisfy the decision-making body, would be predisposed to provide favourable rulings for the government. This obstacle will stand in the way of justice. However, as noted before, a variety of criteria assure this independence, therefore the appointment method is not the single condition for maintaining it. Only if the authority is “completely” vested in the executive will the independence be compromised. 

However, there is a considerable logical gap between Ambedkar’s apparent intention that the government has no role in appointing judges and judicial supremacy being part of the Constitution’s fundamental structure, which was not even up for debate in the Constituent Assembly. Ambedkar is clear that it would be “hazardous” to grant the Chief Justice a veto over nominations, despite the fact that the CJI was brought into the appointments process to offer an apolitical opinion on the individual being considered for the position.  

If, as Justice Goel points out in the NJAC Judgment, judicial supremacy includes the last word, then this is equal to a veto and is in direct opposition to Ambedkar’s position. The only potential counterargument to this position is because the veto now belongs to a judicial collegium, not the CJI as a person, as Ambedkar intended. However, such an argument would need a defence of the judicial collegium, which was unheard of prior to the early 1980s as part of the original constitutional framework. Even for the most enthusiastic proponents of the colloquium, this is a step in interpretation that goes too far.

Collegium Controversies – Not a Hidden Secret

If the Judiciary is to remain a shining example, the Court must be above reproach, free from compulsion and political interference, and there is an urgent need to modify the manner of judicial nominations. Additionally, there were divergences of opinion inside the Collegium. The differences between then-Chief Justice Deepak Misra and the four senior-most judges, including Justices Chelameswar, Ranjan Gogoi, Kurian Joseph, and Madan Lokur, were brought to the attention of the entire nation when the four senior-most judges held a press conference alleging that the Chief Justice is not carrying out his duties properly. “This is an exceptional occurrence in the history of the country, especially this nation. We regret having to hold this news conference, but the administration of the Supreme Court is in disarray and many undesirable events have occurred over the last several months,”

While deliberating on the fallacy in the Collegium System, it becomes imperative to note the Injustice meted out to Justice Akil Kureshi (Former Chief Justice of Rajasthan High Court), in light of this, Anuj Bhuwania, an eminent legal researcher, describes this episode as a “new low” despite the fact that the collegium system has seen its fair share of scandals throughout its almost three decades of existence. “The most alarming aspect of this situation is that the collegium did not even have the courage to suggest his name,” Bhuwania remarked. Since Justice Nariman requested that Kureshi’s name be included on the appointment list, the whole appointment mechanism to the Supreme Court was halted for an extended period of time. However, the process continued just five days following Justice Nariman’s retirement, with the collegium offering a list of candidates that excluded Kureshi prominently.

Conclusion and Suggestions

There must be a Mechanism for handling complaints and negative reports If judicial appointments are made incorrectly, it is practically hard to fix the errors due to the severe procedure for removing judges. Thus, care must be made to ensure that only the most qualified individuals are chosen to the upper collegium judges to evaluate them; they must establish inquiry committees of three members as and when needed, on a case-by-case basis, to review complaints and unfavourable reports. A candidate within the zone of consideration who has received complaints or unfavorable reports must also be given a chance to be heard.

Lack of accountability and openness in the appointment and transfer of judges of the higher court is one of the most prevalent charges levelled against the Indian judiciary today. The need for openness and accountability in judicial operations is growing on a daily basis as a result of rising public and worldwide knowledge of good governance concepts. 

Regarding the appointment and transfer of judges, the judiciary has failed to meet with norms of accountability and openness. The current appointment procedure, known as the “collegium system,” has received various critiques. In each nation, the method for appointing judges has direct implications for the judges’ integrity and independence. In the perspective of the public, weak nominations diminish the standing of the court. The method and criteria used by the appointing authority determine the quality of judicial appointments.

In western democracies, the traditional practice of the administration selecting the judges still remains. Regarding the way in which judges are raised and moved, the Collegium system has been subject to significant criticism throughout the years. There is no debate about the independence of the Indian Judiciary, but in recent years its openness and accountability have been severely lacking. Unsubstantiated charges of favouritism and judges’ complaints about the internal administration have also been counterproductive.