SC Collegium on trial

Judging Appointments

The Supreme Court Collegium system of judicial appointments is in the eye of a storm once again. The controversy began with the swift elevation of Delhi High Court judge Sanjiv Khanna and Karnataka High Court Chief Justice Dinesh Maheshwari, on the collegium’s recommendation, to the Supreme Court. It may be pertinent to mention that Justices Khanna and Maheshwari figured at 33 and 21 respectively in the combined all-India seniority list of high court judges.

In doing so, a five-member collegium, headed by the CJI, had revoked its earlier decision, wherein the names of the chief justices of the Delhi and Rajasthan high courts — Rajendra Menon and Pradeep Nandrajog — had been recommended as judges of the apex court without giving satisfactory explanation for the abrupt change.

The unseemly controversy sent shock-waves through the entire legal and judicial fraternity. Retired Delhi High Court judge Kailash Gambhir wrote to the President terming the collegium’s decision as outrageous and requesting for its review. Former SC chief justices RM Lodha and TS Thakur spoke out against it, calling for more transparency in the decision-making process.

The Bar Council of India and a sitting SC judge S K Kaul, too, spoke out against the blatant supersession of senior judges at large. Former SC judge Madan Lokur, who was part of the collegium that had made the earlier recommendation, expressed disappointment over the CJI not notifying and uploading the December 12 decision on the SC website.

All this criticism, however, didn’t make any difference and the names of the recommended judges were hastily cleared by the law ministry, speedily approved by the President and both of them swiftly sworn in as SC judges without caring who said what.

Strangely enough, the newly constituted collegium’s resolution was silent on superseding the earlier decision. Could such vital decisions that affected the appointment of judges to the top court be taken in such a hurried and casual manner? Moreover, Justice Maheshwari, who became SC judge recently, was superseded last November when a judge junior to him was appointed a judge of the apex court. In less than two months, he has been found to be more suitable and deserving in all respects than any of the other chief justices and judges by the newly constituted panel.

While mysterious are the ways of the collegium system of appointment, it calls into question its wisdom, functioning and veil of secrecy in the selection process. Needless to say that judicial independence, based on the principle of separation of powers, is part of the Constitution’s basic structure and can’t be compromised in any manner.

Technically speaking, there is nothing wrong with supersession if based on weightage to merit and excellence of capabilities, something which has been honoured before and has precedents, too. But when supersession concerns as many as 32 judges, no wonder that many questions are raised about the legitimacy of such procedures.

Primarily, why the collegium, headed by no other than the CJI himself, overturned its earlier decision of elevating two other competent judges and appointed the two new nominees, instead? And why five names were not cleared together, instead of a staggered format, when clear vacancies were available?

Naturally, everybody would be eager to know why 32 judges who have been considered good enough for their courts were overlooked en bloc? Had there been a fair bit of reasoning in support of doing so, nobody would have attributed ulterior motives to the process of two fresh appointments.

Also, it would have not demoralised chief justices and judges of high courts, who have worked hard to reach judicial tiers of seniority, to suddenly find criterion being set aside arbitrarily instead of being aligned with merit, as it is with all other public services. Such outrageous ambiguities lead to theories of pressure from the executive or charges of favouritism in the selection process, to say the least.

Need for reform

All is not well with the collegium system of appointment devised by the Supreme Court itself for selection of judges for the higher judiciary in 1993. It is obviously in dire need of reform. The current government tried to replace it with the National Judicial Appointments Commission in 2014, but the highest court struck down the law a year later, arguing that it was not only against the constitutional requirement of separating judiciary from the executive but also violative of the independence of the judiciary and basic structure of the Constitution.

At the same time, the apex court admitted that the collegium system had to be improved and then asked the government to draw up a revised Memorandum of Procedure (MoP) to be adopted for the selection of SC and HC judges. Ironically, the government saw this as an opportunity to teach the judiciary a lesson for rejecting NJAC in the garb of improving the system’s procedural flaws. It resulted in the executive-judiciary stand-off over the finalisation of MoP for selecting judges. The government is still sitting over it, miffed at the idea of “judges appointing judges” and not allowing it to play its ‘legitimate’ role in the selection process.

In these circumstances, it must be the top priority of the government and the judiciary to sit together to resolve their differences and finalise the MoP without further delay. Whatever the selection process of judges in place, it should be honoured and speeded up to fill all vacant positions expeditiously so that courts function with full strength and deliver justice on time.

While there should be no compromise on the judiciary’s independence, it is incumbent upon it to open itself up to a fair amount of transparency and also make the executive an equal partner in the process of judicial appointments.

(The writer is an advocate, Supreme Court)