Judiciary & Accountability: Critical Assessment of Penumbra of Collegium in India

Author: Aayush Akar

Co-Author: Aditya Gautam & Advait Panda

On November 4, Union Minister of Law and Justice Kiren Rijiju spoke out against the collegium system, which calls for the Chief Justice of India (CJI) to meet with the senior-most judges before appointing justices to the high courts and the Supreme Court. According to reports, he said that the collegium system is “opaque” and “not responsible” and that “judges do not nominate judges around the globe, but they do so in India.” This had led to multiple questions in the mind of the people regarding the judicial appointments in the country. Even in 2019, Vijaya Kamlesh Tahilramani, Hon’ble Chief Justice of the Madras High Court, resigned after the collegium confirmed their decision to transfer her to the High Court of Meghalaya (one of the smallest in the country). Justice Tahilramani was the country’s most senior high court judge. Members of Tamil Nadu’s bar organisations denounced the proposal by carrying out a “one-day court boycott.” In addition, over 2,000 attorneys in Maharashtra’s Latur boycotted court hearings to protest the move. The collegium stated that they had “cogent grounds” for the move and will divulge them if necessary. This indicates that the collegium system must not consider itself above the protections and requirements for openness, accountability, and demographic representation that apply to India’s democratic pillars.

Evolution of Collegium System

Under Article 124 of the Constitution, it was pronounced that “every Judge of the SC should 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 High Courts in the state as the president may deem necessary for the purpose and shall hold office until he attains the age of Sixty-Five”. The initial system worked very well but during the emergency, when the Hon’ble Justice HR Khanna was sidelined by then Hon’ble Prime Minister Indira Gandhi, this raised questions about the judicial independence and evolution of Three Judge Cases came into the picture.  

In the First Judges Case (1981), the Supreme Court ruled that the phrase “consultation” in Articles 124(2) and 217(1) of the Constitution did not entail “concurrence” in the appointment of a Supreme Court or High Court judge. In the case of a disagreement, the Supreme Court held that the Union Government, not the CJI, would have “ultimate power.” As a result, the First Judges Case was an occasion in which the Supreme Court acted against its own interests. The Court overruled the First Judges Case in the Second Judges Case (1993), finding that in the event of a controversy between the President and the CJI regarding the nomination of Judges, the Chief Justice of India’s decision would not only have priority but would be pertinent in the matter. Finally, in the Third Justices Case (1998), the Supreme Court confirmed its 1993 decision and expanded the Collegium to include the CJI and the court’s four most senior judges following the CJI.

Question of Transparency & Accountability

Without a transparent method for appointing judges, the collegium system lacks the confidence and legitimacy to be accepted by all parties in the legal system. Transparency will not be established simply by claiming that the collegium members would behave transparently. It will have to be demonstrated by the process used by the judiciary to appoint judges. Members of the Collegium, although representing the judiciary’s staunch independence, also reflect the judicial branch’s cabal-like behind-the-scenes dealings, which lack transparency and public scrutiny. As a result of the lack of transparency, there is widespread concern about nepotism and the elevation of judges based on personal relationships and past favours rather than merit or seniority. Recently controversy arose when Hon’ble Justices Chandrachud and Nazeer objected to “the process of selecting and appointing judges through circulation”.

The collegium has been plagued by severe allegations of various forms of purported conflict of interest between collegium members and the individuals they have chosen to become judges of the High Courts and the Supreme Court. The collegium urgently needs to develop a thorough set of norms and regulations that will regulate the determination of a conflict of interest among collegium members involved in the selection of judges. Hon’ble Chief Justice of India SA Bobde was the first CJI since 2015 to make no Supreme Court appointments. During his tenure in the office, the collegium he chaired to pick his colleagues had made no recommendations. Even in the case of Hon’ble Justice Jayant Patel, the Karnataka High Court’s senior-most judge, who was transferred to the Allahabad High Court in 2017, given that Judge Patel was widely expected to be appointed to the role of Chief Justice, this move came as a surprise. The Gujarat High Court Advocates’ Association and the Karnataka State Bar Council both strongly denounced the ruling and boycotted the courts for one day.

Replacement of the Collegium System

The National Democratic Alliance government attempted to replace the collegium system in 2014 by establishing the National Judicial Appointments Commission (NJAC). The commission was to be made up of the Chief Justice of India, two Supreme Court judges “next in seniority to the CJI,” the Union Law Minister, and two prominent jurists.

The Collegium System was viewed as flawed because the Judiciary was completely independent of the Executive. However, some points of contention suggest the opposite.

  • Because of the lack of method, the system was opaque, and the rationality of the appointments could not be evaluated.
  • There was no accountability for the judiciary. According to the Second Administrative Reforms Commission, India is the only country in which the Legislature or the Executive has any role in the appointment of judges.
  • The system was misused. As a result, there are many vacancies and cases.
  • The Judges are unaware of the candidates’ backgrounds. The Executive can assist them in this matter.
  • The method was deemed unconstitutional since judges were appointed by the President after consultation with the Judiciary rather than vice versa.

The Supreme Court stated that NJAC violates the Constitution’s ‘Separation of Powers’ doctrine. The Executive was given enough power by NJAC to interfere with the independence of the judiciary. The Supreme Court cited the decision in Bhim Singh v. Union of India, which stated that the Constitution allowed for the overlap of powers as a democratic need. However, it forbids one branch from wielding the power of the other. In the current situation, the Executive has seized critical power from the Judiciary, eroding constitutional accountability.

Concluding Remarks

Hon’ble Justice D Y Chandrachud will have a long enough term to spearhead the judicial appointment changes. In judicial nominations, the Constitution favours a participatory and collaborative process. Let us create a procedure in which everyone may put their faith without hesitation. In the selection of judges to constitutional courts, neither absolute dominance nor total exclusion of the government would be lawfully permissible. After NJAC was ruled unlawful, the Collegium System was implemented. The system could be made more open by soliciting expressions of interest and publishing reasons, including criteria and executive advice on antecedents, among other things. 

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