Who should call the shots while appointing judges?

After a brief interval, the stand-off on judicial appointments has been resumed as on September 27 the Supreme Court fired a fresh salvo against the Union government expressing displeasure that the judiciary is losing fresh talent, even as prospective candidates shortlisted for judgeships in high courts give up, as months tick by without a decision from the government.

The tussle in this regard came to the forefront earlier as well when the Chief Justice of India (CJI) criticised the Centre that the government was indulging in selective appointment and, thereby, sabotaging the seniority system itself. Shortly after comments on the judiciary’s functioning by then Law Minister Kiren Rijiju and Vice President Jagdeep Dhankar, the CJI emphasised that the collegium system is the “law of the land” which should be “followed to the teeth” and “just because some sections of the society express a view against the Collegium system, it will not cease to be the law of the land”. It was further held that Parliament has the right to enact a law, but the power to scrutinise it lies with the court. 

The evolution

Until the evolution of the collegium system in 1993, the Union Cabinet used to maintain an upper hand in the selection process in consultation with the Supreme Court. It will be a futile exercise to search for the concept of collegium either in the Constitution or statute books as it has been developed by the Supreme Court itself through three judicial verdicts, now known as the Judges’ cases.

In the third judges’ case, the nine-judge Constitution Bench reiterated the stand taken in the second judges’ case by interpreting that ‘consultation’ is tantamount to ‘concurrence’ and in case of difference of opinion between the President and the CJI, prominence shall be given to that of the CJI.

In the 1970s, high court judges were transferred by the executive en masse, and a CJI was appointed overlooking the seniority of two others. This is often cited as the root cause for the apex court to take the reins, to preserve the judiciary’s independence.

Criticism from within

Despite all the claims about judicial independence, the collegium system has always been subject to criticism, even from within the institution, for its lack of transparency. It has been accused of nepotism, epitomised by the expression ‘Uncle Judge Syndrome’. It’s fascinating how the writings of V R Krishna Iyer still resonate- “Oligarchic methodology in picking and choosing judges is incompatible with democratic ideology. Esoteric ways and iron curtain operations run counter to the democratic system that judges are expected to uphold.” Retd Justice K Chandru’s remark that “We have judges on the bench who have not even delivered a single decision in their tenure. It is because the present process of selection allows recruitment of advocates who have not argued a single case before the higher courts. As someone said rightly, it has become an old boys’ club where a nod of two existing members is enough to get into the club” could be read as a corollary to Iyer’s futuristic words.

Will of the people

The collegium system might be riddled with inherent shortcomings. Still, it would not be feasible to leave the selection of judges to the exclusive domain of the executive either, as it may pave way for partisan appointments. Given this, what does the people’s resolve tell?

The private member Bill by Communist Party of India (Marxist)’s Bikash Ranjan Bhattacharyya, ‘The National Judicial Commission Bill, 2022’ was introduced in Rajya Sabha after the majority of voice votes were in its favour. The Bill, if approved, would have regulated judges’ appointments, transfers, and laid down judicial standards ensuring accountability of judges, and would have established credible and expedient mechanisms for investigating into individual complaints of misbehaviour or incapacity of a judge of the apex or high court. The National Judicial Appointments Commission Act, 2014, which was struck down by the apex court in 2015, had also garnered widespread support as 16 state legislatures ratified it, apart from unilateral support it received in both houses of Parliament.

These two instances indicate that the people prefer an independent mechanism for judicial appointments, as the judiciary is their last resort. What we need is a transparent and democratic solution; not the hegemony of either the apex court or the Union government. Legislative wisdom will have to step in to play the decisive role and all democratic forces must work in tandem to fulfil the people’s long march towards justice.

(Ron Bastian is a freelance writer and author.)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH