This Judicial Selection Needs More Than A Tweak

Context: Highlighting the pertaining issues regarding judicial appointments.

Legal provisions on appointments to higher judiciary

• Value conflict: Separation of powers is a bedrock principle of Indian constitutionalism.
  • The inherent challenge in judicial appointments is the need to strike a balance between sovereign function of making appointments and the need to ensure an independent judiciary.
• The middle course adopted by Indian Constitution:
  • Judges to the Supreme Court are to be appointed by the President of India in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit.
  • Judges to the High Courts are to be appointed by the President in consultation with the CJI, the Governor of the State and the Chief Justice of that court.
  • In the case of transfers, President may move a judge from one High Court to another, after consulting
• Evolution of collegium system: ‘Collegium’, as such is not mentioned in the Constitution. It evolved as a part of judiciary’s quest for primacy in judicial appointments.
  • Second Judges Case, 1993: Since then, the word consultation has been interpreted to mean “concurrence”.
  • And concurrence ought to be secured not from the CJI alone, but from a body of judges that the judgment described as a “collegium”.
• NJAC and after: 99th Constitutional Amendment, 2015, created the National Judicial Appointments Commission (NJAC), comprising of members from judiciary, executive, and lay-public.
  • Supreme Court scuppered efforts to replace collegium and it held in Fourth Judges Case that judicial primacy in making appointments and transfers was an essential feature of the Constitution.
  • Current standing: Until a proper alternative is framed, the collegium represents the best solution.
  • The ‘Memorandum of Procedure’ mechanism promised while striking down NJAC is not pursued.

Issues with collegium system in judicial appointments

• Legal gap: There is no actual guidance on how judges are to be selected.
  • No constitutional backing for collegium: By Fourth Judges Case, the body that found no mention in actual text of Constitution had assumed a position of basic structure of Constitution.
• Opacity and lack of independent scrutiny of decisions: No reason or explanation need to be provided for decisions of collegium.
  • The words “merit” and “diversity” are thrown around without any corresponding debates on what they, in fact, mean.
• Arena of battle between executive and judiciary: Resulting in logjam and delays in appointments.
  • Inordinate delays: Up to 2021, for nearly two years, despite vacancies on the Bench, the collegium made no recommendations for appointments to the Supreme Court.
• Overreach: Collegium effectively exercises a power of supervision over each of the High Courts. Eg. Five Chief Justices of High Courts have been reshuffled and transferred in recent recommendations.
  • When transfers are made routine, when the process of appointing Chief Justices to High Courts is shrouded in secrecy, a de facto system of oversight is put in place.
  • This dilutes High Courts’ prominence and thereby, trust in our Constitution.

Conclusion: At some point we must take seriously the task of reforming the existing scheme, because the status quo is ultimately corrosive of the very institutions that it seeks to protect.