The Paradoxical Collegium

Procedure for appointments to the higher judiciary in India, is encapsulated in Article 124 of the Constitution of India. Article 124 of the Constitution says that every judge of the Supreme Court should be appointed by the President after consulting the Chief Justice of India (CJI) and other judges of the Supreme Court and high courts. As for the judges of the high courts, Article 217 says that every high court judge should be appointed by the President after consulting with the Chief Justice of India, the governor of the concerned state and the chief justice of that high court.

The President is empowered to transfer a judge from one high court to another after consulting with the CJI. The Constitutional provisions regarding appointments were inserted with expressions such as “consultation”, in order to quell any possibility of superseding of authority by either the President or the Chief Justice of India. The Constitution makers were prescient of the shortcomings which would prevail in due course of time and hence they harmonised the system of appointments amongst the judiciary as well as the executive. But due to intermittent meddling by the executive and its desire to thwart the judiciary’s independence, Article 124 had its application rendered as infructuous and dysfunctional.

Genesis Of The Collegium

Collegium system was the corollary or the aftermath of the judiciary’s victorious tussle with the executive over control on appointments. With a rampant political environment in every aspect of governance, keeping the justice delivery system beyond the malaise of fear or favour was ostensible as it may seem.
The modality of collegiality as we have it today was conceptualised and produced by the Supreme Court in its three famous judgements known as the Three Judges Case. Out of the three cases, the second and the third judgement led to the origin of the collegium. In the second judges’ case of 1993, a nine judges bench sat to adjudicate about the manner in which appointments to the higher judiciary were to be made.

Second Judges Case

The Supreme Court decided that the Chief Justice of India and two of the senior most judges of the Supreme Court were to take the decision of whom to appoint as a judge of the Supreme Court and for the high courts, the chief justice of the high court had to form an opinion after consulting with two of the senior most judges of the high court concerned.
The aim of the Supreme Court was to propound and perpetuate a framework that instils the virtue of deliberation and unanimity, so that the independence of the judiciary can be kept intact. This goal, to say the least, has been far from being fulfilled.

Third Judges Case

The third judges’ case of the year 1997-98 was of a Presidential Reference under Article 143, invoked by then President of India Shri K.R. Narayanan. The broad issue raised by the President in the reference was the intricacy of the consultative process effectuated between the Chief Justice of India and his brother judges, in appointments to the higher judiciary. In response to the reference, the Supreme Court delivered a unanimous opinion, inter alia stating that in matters pertaining to appointments to the Supreme Court, the Chief Justice of India needed to consult with four senior most judges of the Supreme Court.

In previous years and especially since 2014, we have witnessed numerous overtures of transgressions by the executive in the appointment procedure.

Memorandum Of Procedure In Limbo

The Memorandum of Procedure (MoP) which is yet to be revised following the Supreme Court’s direction in the National Judicial Appointments Commission case in 2015 envisages that the collegium’s recommendation, if reiterated after reconsideration, once as requested by the centre, is binding on the latter. The only residuary power which can be invoked by the executive, in order to have its way, is to use its pocket veto, which is to sit on files and delay the appointments. The law does in no manner confer the executive with any sort of authority to manipulate the process of appointments to the higher judiciary. 

Collegium Susceptible To Majoritarian Sentiments

But with a brute majority in the Parliament, apparently, this government would be tempted to discolour the well settled convention with respect to appointments.
The judiciary has to be safeguarded from the attempts of overstepping and usurpation by the executive. But the judiciary is also ought to ensure that its functionality remains transparent and accountable, if not answerable to the public.

Collegium Must Instil Transparency 

For this the Judiciary must also initiate certain reforms within its judicial realm so that the cause of justice and the public’s right to know can be furthered. The executive’s averment, when it does not notifiy an appointment recommended by the collegiums, on most occasions, is, either that the judge being recommended does not possess the requisite seniority among other judges who are equally impeccable in their competence and ability or, that the judge concerned does not satisfy the requirement of just and equitable representation state wise. The working of the collegium manifests rather mysteriously and its orders are not adequately reasoned. They are not speaking orders. This very practice of brushing the cause of appointments under the carpet by the collegium is the elemental cause of tinkering by the executive.

Judges Should Exemplify Rule Of Law 

The judges are public functionaries and they hold a public office, because of which it is unfathomable to see them perform the sacred duty of selecting our future judges in absolute secrecy. Judges are not cardinals and collegium is not conclave of the Vatican which elects the Pope behind locked doors. Justice Jerome Frank of the US Court of Appeals sensibly explained the need of transparency in this para – “I am unable to conceive...that, in a democracy, it can never be wise to acquaint the public with the truth about the workings of any branch of the government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions... The best way to bring about elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions.”

Collegium Must Issue Reasoned Recommendations

The collegium must issue detailed orders and statements while recommending a person for judgeship, explaining his or her merits for the job and also throwing light on why he or she is being recommended despite the existence of other potential senior judges who may have been the recommendees. This would extinguish the scope of a probable rejoinder by the executive against an under explained recommendation of the collegium. And it would also suffice the cause of the right to know of the public, which is intrinsic to the edifice of democracy.

NJAC - 2015 

Indian legal scholars have suggested the formulation of a National Judicial Appointment Commission (struck down by the Supreme Court in 2015) composed of public functionaries from the judiciary and executive, who would collectively choose the judges of the higher judiciary. The United Kingdom has introduced a similar process of judicial appointments following the Constitution Reform Act, 2005, whereby judicial appointments are made by independent Judicial Appointments Commission comprising political, judicial and professional members. It is highly unlikely that such a mechanism would work as effectively in India as it works in the Britain.

Indian Democracy - Sui Generis

Indian democracy is sui generis. Its features and hallmarks are peculiar, unique and thus need to be tackled with extra ordinary measures. More importantly, Judges are men with all the failings; they are not unimpeachable in all aspects and virtues. Thenceforth, it would be extremely unreasonable for the people to expect a Britain like system to work in a distinct polity like India.
The Government needs to be conveyed by the judiciary, that its iron clad tenacity to make ingress into the cardinal task of appointing the guardians of our democracy, will be fought and resisted with utmost vigour and resilience. The judiciary’s place in India is exuberantly imperative. It is perceived as an institution that is incredibly honourable and above the needle of suspicion. But this impregnable belief of the people can be perforated if the collegium does not amend itself and adopts a reformative and transparent approach. The collegium must realise that it is subservient to the Constitution and the people of India, and not towards its own judicial idiosyncrasies.