Notorious for being opaque, the two-decade-old collegium system — under which judges appoint judges — appears to be on its way out. The controversy generated by former Supreme Court (SC) judge Markandey Katju’s allegation that a “corrupt” Madras High Court judge was allowed to continue in office due to political pressure from the DMK-supported UPA-I government could just be the last straw.
Following a consensus reached at a consultation organised by the NDA government with eminent jurists, the Law Ministry is working on a Constitutional amendment bill to replace the collegium system with a Judicial Appointments Commission (JAC) in which the executive will also have some say in appointment of judges of the SC and High Courts (HC). The government is said to be keen to introduce the bill in Parliament during the current monsoon session.
But the much-maligned collegium system was not that bad to start with. When the Supreme Court introduced it through a judicial verdict in 1993, it was hailed as a guarantee against attempts to install a committed judiciary during Indira Gandhi’s rule. People had barely forgotten the April 1973 supersession of three SC judges and the punitive transfers of judges in the 1980s. It was believed this would ensure judicial independence, which is crucial for the survival of any democracy.
This made India the only country in the world where judges appoint judges. The complete exclusion of the executive from the judicial appointment process created a system where a few judges appoint the rest in complete secrecy. The result: favouritism leading to a decline in the quality of appointments.
While successive law ministers have criticised the collegium system, most CJIs (Chief Justice of India) have strongly defended it, saying appointments to the higher judiciary are made after “intense deliberations”. The controversy over the NDA government’s refusal to appoint senior advocate Gopal Subramanium as a SC judge once again brought to the fore the tussle between the judiciary and the executive over judicial appointments.
Whether it is the recommendation to elevate the then Karnataka HC Chief Justice (CJ) PD Dinakaran or the recent one to make Justice KL Manjunath the CJ of Punjab and Haryana HC — the collegium system has been dogged by controversies, forcing a rethink. Late Justice JS Verma, who was part of the bench that delivered the 1993 verdict leading to the setting up of the collegium system, had to advocate a change in the judicial appointment system. Similarly, noted jurist Fali Nariman, who argued for the collegium system, now thinks it should be replaced.
The Law Commission, the Parliamentary Standing Committee on Law and Justice, the National Commission to Review the Working of the Constitution and many senior judges and advocates have suggested that the collegium system be scrapped. “But the real question is how best it can be done to ensure that only able and independent persons are appointed as judges,” says former Attorney General Soli J Sorabjee.
UPA’s JAC bill
The Judicial Appointments Commission Bill introduced in the Rajya Sabha in 2013 by the UPA government had sought to set up a six-member JAC headed by the CJI to replace the collegium system. Other members of the proposed JAC are two senior-most SC judges, the Law Minister and two eminent persons. The proposed JAC will have the power to appoint and transfer SC and HC judges. The JAC Bill is still pending in the Rajya Sabha, while the 120th Constitution Amendment Bill passed by the Rajya Sabha in September 2013 has lapsed with the dissolution of the 15th Lok Sabha.
While there is consensus on the need to replace the collegium system, there is no clarity on the composition of the proposed JAC. Jurists feel the executive should have a say in appointments but the composition of the JAC should be such that it does not result in compromising judicial independence. Justice Katju feels the seven-member JAC should also have the Leader of Opposition in the Lok Sabha and one jurist nominated by the President at his own discretion. The PCI chairman wants the selection hearing should be nationally televised like the US senate hearing for the confirmation of a judge. Sorabjee thinks otherwise. “Transparency does not mean the selection process should be nationally televised. But the deliberations must be recorded and should be available when the occasion arises,” he says.
The Way Forward
“Whatever may be the composition of the JAC, it is important to strike a balance between judicial independence and judicial accountability. The real issue is not who (judiciary or executive) appoints the judges; but the manner in which they are appointed. Unless the entire process is transparent, the quality of appointment would not improve,” says senior advocate KTS Tulsi. Law Minister Ravi Shankar Prasad has already clarified that the government does not want to go back to the pre-1993 system in which the executive had a greater say in judicial appointments. All eyes are now on the NDA government.