Justice J Chelameswar of the Supreme Court has made certain disturbing observations about the Collegium system of appointment of Supreme Court and High Court judges, saying that the existing system is opaque and marked by nepotism. Many well-known jurists and lawyers have decried the system of selection of judges by the Collegium. Amidst the controversy over the elevation of the Karnataka High Court Chief Justice, PV Dinakaran, to the Supreme Court, the Bar Associations of Delhi High Court and the Supreme Court, in a joint letter addressed to the Union Law Minister, sought the dissolution of the Collegium. The letter stated that the Collegium system has been a failure and it has encouraged lack of transparency and favouritism. Justice Krishna Iyer called the present arrangement “incestuous” because the judges only react and talk to one another of their flock.

Article 124 of the Constitution has vested the power of appointment of the Chief Justice and judges of the Supreme Court and High Courts in the President of India. The Constitution provides that the President shall make these appointments “after consultation” with judges of the High Courts and Supreme Court that he may deem necessary. The Constitutional provisions speak of “after consultation” and not “in consultation” in the case of appointment of judges other than the Chief Justice of India. 

 Since 1950, the appointment of judges has been based largely on the recommendations of the Chief Justice of the Supreme Court and High Courts, except during the Emergency. Appointments have seldom been made without the concurrence of the Chief Justice of India. 

The system of judicial appointments by the Executive (1953-93) was substituted by the judicial Collegium of five senior judges. It was a Supreme Court decision in the Second Judges case (1993). The Court ruled that the recommendation of the CJI, along with that of four senior-most colleagues, is “determinative” and binding on the President. This was almost an attempt by the judiciary to re-write the law through this judgment. The direction makes the Supreme Court and High Courts virtually undemocratic. 

In July 1999, the President sought the court&’s opinion on certain issues relating to the appointment of Supreme Court judges and the transfer of High Court judges. A nine-judge bench of the Supreme Court (Presidential references, AIR 1999, SC), reiterated that primacy should be given to the opinion of the Collegium as laid down in the 1993 judgment, but stipulated that the Collegium should take the decision on the basis of consensus. ‘The Third Judges’ case further stipulated that in respect of the recommendations of the Collegium, the opinion of all its members should be given in writing and their views must be conveyed by the Chief Justice to the Government, with his recommendations.

Justice Chelameswar&’s letter to the Chief Justice reveals that these stipulations are not being followed by the Collegium. He has asserted that its deliberations are kept under wraps. Though the National Judicial Accountability Judgment of the apex court in October 2015 emphasises the need for transparency, the Collegium continued with its own policy of deliberations as well as communication to the Centre. Justice Chelameswar was the sole dissenter in the National Judicial Appointments Commission (NJAC) judgment delivered by a five-judge Constitution Bench and held that the Collegium system has become a “euphemism for nepotism and where mediocrity or even less is promoted”. He disagreed with the contention that judicial primacy in the appointment of judges is a basic structure of the Constitution. 

Justice Ruma Pal, a former judge of the Supreme Court, had earlier described the process of appointment of judges to the superior courts as possibly “the best kept secret of this country.” According to her, “Consensus within the Collegium is sometimes resolved through a ‘trade-off’, resulting in dubious appointments, with disastrous consequences.” 

There is little doubt that the present system has encouraged nepotism and many unqualified judges, with poor records, have been elevated. One of the worst examples was the appointment of Soumitra Sen as a judge of Calcutta High Court in 2006, even as he faced allegations of having misappropriated Rs. 50 lakh while serving as a court-appointed lawyer in 1993 to settle a dispute between two public sector companies. The Collegium cleared him for the appointment without bothering to check his credentials although the entire record was available in the court. The Collegium often doesn’t have sufficient information about the candidates whom it considers for appointment. In every High Court, the Chief Justice is from another State, as per the policy of the Government. The senior most judges, who form the Collegium, are also often from outside the State. As a result, more often than not, appointments suffer from lack of adequate information. Indeed, to decide on judicial appointments is not a part-time job that members of the Collegium can perform after doing the judicial work of deciding cases. In no democratic country, are the judges allowed exclusive say in their own selection.

The Supreme Court struck down the Constitution 99th Amendment Act (2014) that enabled the setting up of a National Judicial Appointments Commission. The court held that the Collegium of judges will have exclusive authority to select candidates for appointment of judges of the Supreme Court and the High Courts. But in his dissenting judgment, Justice Chelameswar criticized the Collegium system for being, “absolutely opaque and inaccessible, both to public and history, barring occasional leaks.” Further, quoting Justice Hughes, he said that, “It was an appeal to the brooding spirit of law and to the intelligence of the future days.”

Former Chief Justice Lodha has reportedly iterated that there must be consensus in the selection of judges and views of the members of the Collegium must be recorded in writing and communicated to the Government along with the recommendations of the Collegium. The closed and secretive method of selection must end. There cannot be two opinions on the point that selection of judges has to be fair and above board. Judicial probity is closely linked to proper appointment of judges in the higher courts. The health of the judiciary depends upon the quality of those serving as judges.

The Collegium asked the Government to draft a Memorandum of Procedure (MOP) for appointment of judges and this has now become the bone of contention between the Government and the Supreme Court. In consequence, many vacant posts of judges are not filled. In many of the High Courts, nearly 50 per cent of the posts are vacant. The data on pending cases is increasing exponentially. More than 62,000 cases are pending in the Supreme Court and 38 lakh cases in the High Courts. It might take years to clear the backlog. However, filling the vacancies will not alone reduce the pile-up. The judiciary will have to adopt several other strategies, including better court management . 

The standoff between the Government and the Collegium, led by the CJI, is unfortunate and is bound to affect the justice delivery system. The Memorandum of Procedure (MOP) should be drafted in conformity with the judgment of the Court in the NJAC Act case as well as the Supreme Court&’s directives in the ‘Third Judges’ case. The functioning of the Collegium has to be fair and transparent and at the same time free from the pressures of the Executive. The present standoff can impede good governance. Judicial independence should be matched by judicial transparency and accountability. Judicial accountability is the best guarantee of judicial independence.

The writer is Senior Fellow, Institute of Social Sciences; former Director-General, National Human Rights Commission; and former Director, National Police Academy, Hyderabad.