New Delhi
The collegium system of appointing judges of the High Court and the Supreme Court needs to be revamped to ensure more transparency in the selection process.
This is the view expressed by former Chief Justice of India N.V. Ramana and Justice Madan B. Lokur, who publicly objected in January 2018 against the then Chief Justice Dipak Misra assigning high-profile cases to junior judges bypassing seniors.
Justice Ramana, whose tenure witnessed the highest number of judicial appointments, was forthright in his comments when he said at a meeting “there have been various concerns raised in different quarters including by the government, lawyers’ groups and civil society, relating to the functioning of the collegium system in India. These cannot be ignored or brushed aside, and definitely merit consideration.”
Justice Lokur was of the view that the discussions relating to judicial appointments should be more transparent and made available to the candidates who are selected and non-selected.
“The question is who have you (collegium) appointed and why are you appointing that person,” he added.
Process is unique as both process, criteria are opaque
The system of judges appointing judges is unique to India as it is completely opaque and criteria adopted for selection is kept secret.
For the High Courts, judges are appointed from among lawyers and judicial officers in subordinate judiciary.
Community and caste considerations play a major part in such selection.
For the top court it is mandatory that judges from all the states (the respective High Courts), women judges, SC/STs are adequately represented, but in reality, regional imbalance continues to exist.
Representation from Bombay and Delhi High Courts in the top court have always been more than other High Courts. This may be because only very few Judges from south have become CJIs and CJI has a larger say in such appointments.
Caste, community play major part in selection; but representation often inadequate
There has been only one Chief Justice of India K.G. Balakrishnan from among Scheduled Castes between 2007 and 2010. There are several instances when meritorious judges, higher in seniority have been overlooked during elevation to the top court.
Juniors in the bottom of the seniority list get selected much to the displeasure of seniors. No reason is being given for such appointments.
In this context it is necessary to trace the history of appointment of Judges in India.
Judges of the Supreme Court and High Courts are appointed by the President under Articles 124(2) and 217 of the Constitution, which do not provide for reservation for any caste or class of persons.
Hence, no caste/category-wise data is maintained centrally. The President is required to hold consultations with such of the judges of the Supreme Court and of the High Courts as he may deem necessary.
Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
Article 217 says: “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.”
High Court judges hold office till the age of their superannuation at 62 years. This procedure held the field till 1981.
THE FIRST JUDGES CASE: In S.P. Gupta Vs Union of India, 1981, the Supreme Court by a majority held that the concept of primacy of the Chief Justice of India was not really to be found in the Constitution.
It held that the proposal for appointment to a High Court can emanate from any of the constitutional functionaries mentioned in Article 217 and not necessarily from the High Court Chief Justice.
The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 was not “concurrence” – meaning that although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them.
The executive took advantage of this judgment to enjoy primacy in appointments of judges of High Courts. This situation continued for the next 12 years.
THE SECOND JUDGES CASE: In the Supreme Court Advocates-on-Record Association Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision in S.P. Gupta case and devised a procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
The Second Judges Case accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments.
“The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary,” it held.
Introducing the collegium system, the court said that the recommendation should be made by the CJI in consultation with his two senior-most colleagues, and that such recommendation should normally be given effect to by the executive.
Although it was open to the executive to ask the collegium to reconsider the matter if it had an objection to any name, if, on reconsideration, the collegium reiterated the recommendation, the executive was bound to make the appointment.
THE THIRD JUDGES CASE: In 1998, President K. R. Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution (advisory jurisdiction).
The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.
The Supreme Court laid down nine guidelines for the functioning of the coram for appointments and transfers – this has come to be the present form of the collegium and has been prevalent ever since.
This opinion laid down that the recommendation should be made by the CJI and his four senior-most colleagues, instead of two.
It also held that Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted. It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.
It is this collegium system which is criticised for being non-transparent in the selection system.
Appointment process seen as a closed-door affair
The collegium meeting is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure.
When BJP came to power at the Centre in 2014 it came out with the National Judicial Appointments Commission (NJAC) law to appoint judges.
In 2015, a five-judge Constitution Bench declared as unconstitutional the amendment that sought to create the NJAC, which had envisioned a significant role for the executive in appointing judges in the higher judiciary.
SC rejects NJAC; says won’t accept alternative which denies primacy to judiciary in selection, appointments
The top court held that judges’ appointments shall continue to be made by the collegium system in which the CJI will have “the last word”.
“There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary,” said the majority.
Experience had shown, that adhering to the practice of appointing the senior-most Judge as the Chief Justice of India, had resulted in institutional harmony and collegiality amongst judges, which was extremely important for the health of the judiciary, and also, for the independence of the judiciary. It would be just and appropriate, at the present juncture, to understand the width of the power, so as to prevent any likelihood of its misuse in future.”
The SC collegium is headed by the CJI and comprises four other senior-most judges of the court. A High Court collegium is led by its Chief Justice and four other senior-most judges of the court.
Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
Centre’s role limited to IB check into background
The Central government’s role is limited to getting an inquiry conducted by the Intelligence Bureau into the appointees’ background and approving the selection in majority of cases.
In January 2018, four judges of the Supreme Court raised a banner of revolt against the then CJI Dipak Misra, by stating that the roster system of listing of cases leaves the CJI with the discretion to assign high-profile and important cases to judges of his choice, even junior judges, bypassing senior judges.
They also questioned certain appointments. This resulted in Justice Dipak Misra deciding to put on website the decisions of the collegium in selection of judges. This ushered in some transparency in collegium decisions. Still why a person is chosen over another is kept secret.
Judges’ press meet brought in whiff of transparency
Justice Ramana, who retired as CJI in August, admitted that the system is not perfect and much needs to be done in the selection process.
However, many CJIs, to whom this author had regular interactions are convinced that disclosing reasons for non-elevation of a HC judge to the Supreme Court will result in more ignominy to the judge concerned than not revealing the reason, and he may not continue in that High Court thereafter and the issue will be put to rest after some debate in the bar.
Wrong to say there is no criteria for selection. Factors such as seniority, integrity, merit, disposal of cases, equation with the bar considered
One retired CJI said “It is wrong to say that there is no criterion for selection. Several factors are taken into consideration– viz a person’s inter-se seniority, integrity, merit, rate of disposal of cases and equation with the bar. These cannot be disclosed as the revelations will harm the image of judiciary and portray the collegium judges in bad light. For example, if the reason for a lawyer not being considered for a judge’s post is disclosed then he may not practice in the same High Court as he will have to face the ignominy of adverse comments from the bar. Thus, though the collegium system may not be the best system it has served the purpose and stood the test of time with some aberrations. This has to continue till a better system is found to the satisfaction of all.”
Revealing why a candidate wasn’t selected may be damaging for reputation, career
In an unprecedented move, outgoing CJI U.U. Lalit recently made public a collegium resolution airing differences among the members on some names proposed to be elevated to the top court. A beginning seems to have been made, but the top court needs to consciously work towards being more transparent than ever before.
J. Venkatesan is a member of NitiRiti’s advisory board; a legal journalist of repute, he has worked with several Delhi-based national newspapers, including the Hindu, and has received many rewards acknowledging his yeoman contribution to the development of legal journalism. You can reach him at editor@nitiriti.com
