“We can make the Collegium System transparent, but we can’t leave Judicial Appointments to the Government.”
“We can’t leave Judicial Appointments to the Government, but we can make the Collegium System transparent.” This article examines the history of judicial appointments as well as the future of the Collegium system.
The recent statement by Law Minister Kiren Rijiju about the different opacity of the collegium process for the mere appointment of the higher judiciary has reignited debate on the subject. In light of this new statement and the road ahead, the authors of this article examine the history of judicial appointments in India.
Background: A Journey Through the Collegium System
The Indian republic is founded on the separation of powers among three branches of government. Courts are given judicial power and are supposed to be a check on the excesses of the legislature and the executive.
Given its critical role, the judiciary as an institution must be shielded from the pulls and pressures of majoritarian politics and executive influence.
One way to ensure judicial independence is to ensure that the process of appointing judges is merely fair, transparent, and independent of electoral majorities, resulting in the selection of technically competent and socially diverse judges.
The Indian Constitution does not go into detail about how Supreme Court and High Court judges are appointed. According to Article 124(2) of the Constitution, judicial appointments are made by the President (the executive) after “consultation” with as many Supreme Court justices as the President deems necessary.
In the 1970s, an increasingly-authoritarian executive sought to undermine judicial independence, reaching a climax during the Emergency. During this time, the Supreme Court was stacked with carefully selected “committed judges.” As a result of the resulting loss of credibility and trust, the judiciary went out of its way to keep the new executive out by later asserting control over judicial appointments.
The First Judges Case, SP Gupta v. Union of India, 1981, held that the term “consultation” used in the Article 124 did not mean “concurrence.”
The Supreme Court reversed this position in Supreme Court Advocates-on-Record-Association v. Union of India, 1993 (the Second-Judges Case), holding that Article 124 of the Constitution actually required by the “concurrence” of the chief justice and the two different senior-most judges.
In Re-Special Reference No. 1 of 1998 (the Third-Judges Case), the Supreme Court and High Court judges were appointed and transferred through what is now known as the collegium system. This collegium is made up of the Supreme Court’s four senior-most puisne judges.
The tension created between the executive and the judiciary over appointment has always simmered beneath the surface. In a rare show of bipartisanship, parliamentarians from all parties passed the 99th Amendment to the Constitution and the National-Judicial Appointments Commission (NJAC) Act in 2014.
The NJAC was to be composed of the Chief Justice of India, two senior-most Supreme-Court judges, the Union Law Minister, and two distinguished individuals. Unsurprisingly, the amendment and law were both challenged in court.
The Court determined that judicial primacy in judicial appointments is a fundamental component of judicial independence. The amendment and Act were overturned, and the collegium system was revived.
The Fear of Executive Power
Concerns about executive dominance affecting the independence of the judiciary are valid.
We must not forget past examples of flagrant violations of the doctrine of separation of powers, such as in the year the 1970s, when the union government used judicial appointments and transfers to dominate the judiciary and discourage judicial pronouncements that were unfavorable to it.
Executive dominance in judicial nominations poses a serious threat to judicial independence. Interpreting Article number 124 to simply mean that the government should appoint different judges, as the Law Minister recently suggested, is to ignore history and democratic principles.
Executive dominance, however, is only one threat to judicial independence. The security of being immune to the various biases of the government, senior judges, then fellow-judges, members of the bar, the media, and other different sources of undue influence comes from a judge’s true decisional independence.
The ability of the collegium system to achieve optimal judicial independence cannot be judged solely on the basis of minimizing executive dominance.
In any case, it is naive to believe that there is no executive interference in judicial appointments under the collegium system at the moment. The Union Government has the authority to request that the collegium reconsider the elevation or transfer of any type of particular judge, and has done so several times recently.
If the collegium reiterates the recommendation after reconsideration, the Union Government is obligated to make the appointment.
However, because there is no time limit for such type of appointments, the Union Government has delayed the different appointments indefinitely in cases where the collegium’s decision was effectively blocked.
This is not to say that the collegium system is without flaws; rather, giving the government power over judicial appointments jeopardizes the judiciary’s independence. So, what exactly are the issues or problems with the collegium system?
Transparency and the Rule of Law
The criticisms leveled at the collegium system necessitate a more in-depth understanding of the rule of law and limited-government. Our democracy and Constitution are built on a system of checks and balances that prevents power from being concentrated in any one institution or individual.
This is accomplished by putting people with competing interests in positions of power over one another in various arenas. It can also be accomplished by establishing ground rules to limit individual discretion and making processes transparent to increase accountability.
In these areas, the collegium system falls short. Apart from the fact that the entire process is opaque, there are no clear guidelines or steps on how the collegium should decide on the appointments.
Since 2017, the collegium resolutions have been posted on the Supreme Court website. Some of their resolutions from 2017 to 2019 included information about the process and the judges involved.
For example, the resolution of 3 October 2017 regarding the appointment of three different judicial officers as judges of the Kerala High Court goes into detail about each judicial officer’s candidacy and describes the collegium’s process.
However, the resolution does not explain why these judges were chosen or why others were rejected. The collegium may understandably be reluctant to reveal reasons for rejection, but various reasons for the selection should have been made public.
Unfortunately, since the year 2019, even these details have vanished, and uploading resolutions to the website has devolved into a mere formality.
The collegium’s statement dated September 28, 2022, for example, only states that Justice Jaswant Singh, then Justice P.B. Varale, and Justice Ali Mohammad-Magrey will be appointed as Chief Justices of Orissa, Karnataka, and J&K, respectively. Other information is not provided.
In the past, there has been a call for greater transparency. For example, the government proposed that the collegium provide written justifications for its nominations and keep track of objections to selections. All of the government’s proposals were rejected by the Court.
As a result, citizens have no way of knowing how or why particular judges are elevated or transferred. Judicial appointments continue to be shrouded in secrecy, while other branches of government are held accountable through the Right to Information Act and other transparency measures.
Accountability is lacking.
The issue of judicial appointments, and thus judicial independence, goes beyond the power divide between the judiciary and the executive. Consider the relationship between the Supreme Court and the lower courts. With the exception of the ability to hear appeals from High-Courts, the Supreme Court is not “superior” to the High Courts.
All courts of record, i.e., the High Courts and Supreme Court, are independent power centers in the constitutional scheme, with no hierarchical administrative structure. Each High Court expressly has the authority to supervise all “subordinate” courts within its jurisdiction. Notably, the Supreme Court has no such authority over the High Courts and was never intended to be superior in administrative matters.
The collegium system, on the other hand, undermines this design by concentrating enormous power in the hands of a few Supreme Court justices over the fate of High Court judges. What about the High Court’s independence now? Another casualty is diversity.
According to the Ministry of Law and Justice’s higher judicial database as of September 1, 2021, 11.2 percent of Supreme Court and High Court judges were women. 80% of the judges appointed during Justice Raman’s tenure as Chief Justice were upper caste Hindus. Supreme Court justices are chosen from the bar or the High Court judiciary. Even though “distinguished-jurists” can become Supreme Court judges, no jurist or scholar has ever become a judge.
From the widely panned example of Justice Gogoi attempting to decide his own case involving allegations of sexual harassment against him to the dismissal of different objections in the NJAC case that Justice Khehar is a member of the collegium and thus has a conflict of interest in deciding the NJAC-case, there is a troubling trend of judicial exceptionalism and a type of refusal by judges to be accountable. Contempt cases are also used to quell criticism of the judiciary from civil society and the bar.
Given the tendency of many members of the higher judiciary to consolidate their powers, as well as the unmistakable lack of diversity among judges, the time has come to ask questions about protecting judicial independence from the biases of one elite set of judges, rather than characterizing it solely as an issue of executive dominance.
Considering Alternatives to the Collegium System
The Law Minister is correct in stating that there is growing concern about the collegium system.
While leaving judicial appointments to the government is not an option, a discussion of the collegium system is long overdue. The selection of judges for the higher judiciary should be based on publicly available criteria such as merit and diversity.
All proceedings and opinions of members of the judicial appointment body should be recorded and made public. Finally, participation in the appointment process by lay people or executive authorities should be encouraged.
If executive dominance is a concern, it can be alleviated by judicial majority representation or the involvement of the leader of the opposition, but completely excluding non-judicial members from such a process is unwarranted.
‘Objection, Lords?’ Ex-Judges and Lawyers Offer Collegium Solutions
On 10 October, amid unverified reports of a “rift” and speculations about two Supreme-Court collegium members objecting to the judicial appointment procedure, the five-member body issued a resolution.
The resolution, while lauded as a welcome step toward greater transparency, does not address fundamental concerns about the collegium system itself. The Quint obtained information from legal experts.
What was the source of the apparent disagreement? What issues does this bring to light within the collegium? What are the ramifications of its most recent decision? And are there any ways to deal with system issues?
An Overview of the Supreme Court Collegium and Its Members
The Collegium of the Supreme Court, led by the incumbent Chief Justice and comprised of four other senior-most Supreme Court judges, makes appointments and transfers to the apex court.
The collegium currently consists of the CJI and the four members listed below:
- DY Chandrachud, Chief Justice
- SK Kaul, Chief Justice
- S Abdul Nazeer, Justice
- KM Joseph, Justice
Rumours, ‘Rift’ Reports, and a type of Resolution
After an in-person meeting of the full collegium to finalize the appointment of ten Supreme Court judges could not be convened on September 30 due to Justice DY Chandrachud’s commitments at the court, Chief -Justice of India UU Lalit wrote various letters to his four co-members (of the collegium) seeking their written-opinion on the different appointments.
While Justices Sanjay Kishan-Kaul and KM-Joseph wrote back to the CJI in support of the proposals, two members – Justices Chandrachud and S Abdul-Nazeer – objected to the procedure of then appointing and selecting judges through letter distribution. They did not, however, express an opinion on the different names of the candidates circulated by the CJI.
Prior to that, at a meeting on September 26, the collegium unanimously approved the elevation of Justice Dipankar-Dutta to the Supreme Court but decided that the different elevation of the 10 others would be very decided on the merits of their decisions on September 30.
On 7 October, three days before the resolution, the Union Law Minister wrote a letter asking the CJI to recommend his successor. Conventional wisdom holds that with only a month until retirement, the CJI cannot make any more appointments.
In fact, CJI Lalit reportedly cited the same rule when he objected to his predecessor, CJI Ramana, approving two appointments.
The Law Minister’s letter is also mentioned in the Collegium’s resolution of 10 October, which adds:
“In the circumstances, no further action is required, and the unfinished business in the meeting scheduled for September 30, 2022 is closed without further deliberation.” The meeting scheduled for September 30, 2022 is cancelled.”
What Does the Resolution Indicate?
“The discharge of the 30 September meeting meant that the meeting or the grounds for it were cancelled, and everything decided on the 26 September would hold more weight,” Adeel Ahmed, Advocate-on-Record at The Supreme Court, explained.
Essentially, this means:
The unanimously agreed-upon principle of considering the merits of judgments for remaining appointments would be followed.
Furthermore, the remaining other appointments will not be made by incumbent CJI Lalit because, following the Union Law Minister’s letter, and within a month until his retirement (as per the above-mentioned convention), he can no longer convene the collegium.
According to Ahmed, there is no clarity on the fate of the ten other different judges whose elevation to the Supreme Court was to be decided on September 30.
Now that CJI Lalit cannot clear appointments before retiring, a decision on what happens to those other ten names will be made during the tenure of the next CJI, he added.
‘Why the current system may not work…’ What Former Prime Minister Narsimha Rao Told a Former Chief-Justice
“As long as you have the type of collegium, rifts are bound to happen,” Supreme Court Advocate-on-Record Adeel Ahmed told The Quint.
He added that differences will always exist in the absence of a more elaborate or specific system other than the collegium.
Former Chief Justice of the Rajasthan High Court and the Bombay High Court Justice Pradeep Nandarajog explained this further in an anecdote about a dinner with former Prime Minister Narasimha Rao.
“When the Collegium system was first introduced, Narasimha Rao told me over dinner that it might not work because, unlike politicians, judges are not trained to deal with interpersonal relationships, and that has proven to be correct.” “A politician can maneuver on an interpersonal level, whereas judges are not trained to do so,” he told The Quint.
“In light of what has happened, Rao’s prophecy has come true,” Justice Nandarajog had told.
“The underlying-reason for disagreements within the different collegium can sometimes also be that the other judges have different preferences for candidates,” Supreme Court Advocate Paras Nath Singh told.
He also noted that, while there is nothing illegal about the CJI seeking written advice on appointments, there is always the possibility that the incumbent CJI and the judge next in line to become CJI prefer different candidates.
This may also be true because, as the incumbent CJI nears the end of his term, the next CJI will have to collaborate with those appointed by the collegium.
Experts say the CJI’s request for a written opinion is not illegal, but it deviates from custom.
Experts confirmed to The Quint that Chief Justice Lalit’s move, which was met with opposition from two others, was not ‘illegal.’
In fact, in the collegium’s Memorandum of Procedures (MoP), one of the methods for achieving unanimity on appointments is to request an opinion in writing.
But it’s also worth noting that, while not technically incorrect, a CJI requesting written approvals and deviating from the established norm of face-to-face meetings to decide on appointments is unprecedented.
“The norm for the past 25 years, ever since the collegium was established, has been physical meetings,” Justice Nandarajog explained. “A custom is followed for so long that it becomes law by precedence.”
“When the current CJI sought an opinion in writing, he acted in a manner that was not customary,” he observed.
The fact that the entire selection and appointment process is at the discretion of the collegium and that one cannot question the collegium’s meeting or minutes is “what highlights the problems with the collegium,” according to AOR Adeel Ahmed.
What Are Some Potential Solutions?
In an interview with LiveLaw, Justice Madan Lokur, a former Supreme Court judge, suggested that the collegium’s deliberations be videotaped and archived.
“So whatever each person says is recorded and archived, but it is never published or broadcast on radio or television.” You would not have a problem if there was a recording. That is why this is significant,” he stated on October 9th.
Other experts suggested that a possible way to avoid such apparent disagreements in the future is to have broadly set specific parameters for elevating judges and advocates to the Supreme Court rather than leaving it solely to the collegium’s unanimity.
“Such disagreements could be resolved if the Supreme Court could make a statement saying that these are the broad considerations under which we move — regional representation, seniority, gender, religion, or caste,” Justice Nandarajog told The Quint.
“Putting out there a template guideline would lend more credibility to the system,” he said.
“The 26 September decision to appoint judges based on their judgments is a step towards a more merit-based procedure, and personally I think that is a good move,” Supreme Court Senior Advocate Sanjay Hegde told The Quint.
As a result, judges may make an effort to write judgments succinctly, while keeping in mind that people are looking at more than just the correctness of the judgement, but also the manner of delivery and structure, he explained.
“Although the method is not yet set in stone,” he said, “it is definitely a step in the right direction.”
