By Venkatasubramanian Srinivasan
The Indian Collegium system, which empowers sitting judges of the Supreme Court and High Courts to recommend appointments and transfers of judges, has been subject to intense debate and scrutiny. While introduced with the aim of ensuring judicial independence and merit-based appointments, the system has faced significant criticism due to several inherent flaws.
The Collegium system lacks transparency and accountability, with the process of selecting judges shrouded in secrecy. This opacity has led to accusations of nepotism, favouritism, and lack of diversity in appointments. Moreover, the system is criticized for being exclusive and elitist, primarily involving judges in the decision-making process, with no participation from other stakeholders such as the executive and legal community. This concentration of power within the judiciary has raised concerns about the system’s democratic legitimacy and the need for broader representation in judicial appointments.
Additionally, the Collegium system operates with no external checks and balances with respect to selection of judges for appointment, lacking robust accountability mechanisms. This has led to instances where questionable appointments have gone unchallenged, undermining public confidence in the judiciary. Furthermore, inefficiencies and delays in judicial appointments are prevalent, as the process often involves prolonged deliberations and disagreements among Collegium members, impacting the timely delivery of justice.
While the Collegium system may lack explicit validation in the text of the Constitution, it has been recognized and operationalized through judicial pronouncements. Articles 124 and 217 outline the appointment processes for the Supreme Court and High Courts, respectively, indicating that the President of India shall appoint judges after consultation with certain authorities. However, judicial pronouncements, particularly landmark cases such as the Second Judges Case (1993) and the Third Judges Case (1998), have established the judiciary’s primacy in judicial appointments. These judgments have effectively interpreted “consultation” to mean that the President is bound by the recommendations made by the Collegium.
There is a pressing need for comprehensive reforms to address the shortcomings and ensure a more transparent, inclusive, accountable, and merit-based process for judicial appointments in India.
It is essential to mention the National Judicial Appointments Commission (NJAC), a proposed constitutional amendment aimed at reforming the Collegium system. The NJAC sought to establish a commission comprising members from the judiciary, executive, and civil society to recommend appointments and transfers of judges, thereby introducing a more participatory and accountable process.
However, the Supreme Court, in a landmark judgment in 2015, struck down the NJAC Act, asserting that it violated the basic structure of the Constitution, particularly the principle of judicial independence. The Court reaffirmed the Collegium system as the prevailing method for judicial appointments, emphasizing the judiciary’s role as the custodian of the Constitution and the need to preserve its independence from undue influence.
Despite the setback faced by the NJAC, there remains a continued discussion on how to enhance accountability and transparency in judicial appointments. One potential approach could involve revisiting the framework of the NJAC to address the concerns raised by the Supreme Court while ensuring the preservation of judicial independence. This may entail reconfiguring the composition and functions of the commission to strike a balance between the judiciary, executive, and civil society, thereby fostering greater accountability and inclusivity in the appointment and transfer processes.
Additionally, introducing regular performance evaluations for judges and establishing clear criteria for appointment and promotion, could complement efforts to reform the process. This would require establishment of an independent and impartial body comprising members with expertise in law, judicial administration, and ethics, but who are not currently serving as judges. It could include retired judges, legal scholars, representatives from the legal profession, and members of civil society, and reflect diversity in terms of gender, ethnicity, and professional background to ensure a broad perspective in evaluating judicial performance.
Further, by embracing international best practices for judicial appointments, such as establishing an independent judicial commission, India can fortify its judicial systems, bolster public trust in the judiciary, and uphold the principles of democracy and the rule of law.
By fostering meaningful dialogue and collaboration among the judiciary, executive, and other stakeholders, India can strive towards establishing a more transparent, accountable, and merit-based system for judicial appointments, thereby enhancing public confidence in the judiciary. The judiciary is expected to play a proactive role in this process by subjecting itself to public scrutiny and demonstrating transparency and accountability to the nation and its citizens.
In an era of rapid global change and ongoing improvements in governance, democracy, and the rule of law, the Supreme Court of India, as an integral part of the democratic framework, must demonstrate the courage to initiate constructive dialogue aimed at reforming the judicial system. It should lead by example, ensuring transparency and fairness, not only as an arbiter of public interest but also in practice. Just as the Court has been vocal in directing the executive, institutions, and the public to uphold public accountability, it should likewise prioritize transparency and fairness within its own operations.
[The author is a retired international civil servant of the United Nations, presently Founder & Principal Consultant, India i.e., Bharat Knowledge Exchange, and Founder & CEO, Quill & Juris]
