Replacing the collegium system

Written by Indu Bhan | Indu Bhan | Updated: Jul 2 2014, 07:24am hrs
The fiasco over former Solicitor General Gopal Subramaniums appointment and later withdrawal of his consent for the Supreme Court judgeship has once again revived the debate over the collegium system that at present governs the appointment of judges in the country.

The collegium system is the one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges.

While there have been murmurs of dissatisfaction over the practice in different quarters, the present Chief Justice of India, RM Lodha, is for continuation of the system but with wider consultation with people outside collegium and without tinkering with the memorandum of procedure prescribed by the government in the appointment process.

However, legal experts are unanimous in blaming the present collegium system for the Subramanium mess, saying the crucial exercise cannot be left entirely either to the whims of members of the judiciary or the government.

Keeping the system of appointment of judges within the four walls of collegium has given rise to a lot of criticism like uncle-and-son-syndrome which exemplifies the misalignment between the core values of judicial independence and accountability.

Though top jurists vouched for Subramaniums integrity and competence, it is not the first time that a collegium recommendation has been returned. Even in the past, names for appointment as judges, including that of Justice PD Dinakaran in 2009, were returned by the government in the wake of unfavourable reports by the Intelligence Bureau.

Pointing to systemic errors against the collegium system, the legal fraternity feels that any selection system, including the one for appointing judges in the high courts and the apex court that excludes the one branch of government, completely runs counter to the basic democratic principle of institutional checks and balances. The question as to why it is exclusively left to judiciary to appoint judges has been bothering not just the top echelons of judiciary but the executive too, as the collegium system of judges appointment has outlived its utility. Even the process has never been foolproof as the judges decide their own appointments through a collegium of senior judges. Few dub it as a total failure when it comes to inducting judges of quality.

While the Parliamentary Standing Committee on Law and Justice, which vetted the governments Judicial Appointments Commission (JAC) proposal, said that the present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability; the Law Commission in its report on Proposal for Reconsideration of Judges cases I, II and III had recommended a law to restore the primacy of the CJI and the power of the executive to make appointments.

As such, the collegium system has no place in the Indian Constitution. But the system evolved through a series of three Supreme Court judgments has reiterated the primacy of the chief justice in the appointment of Supreme Court and high court judges. The three judgements clubbed together as the Three Judges Cases are: SP Gupta case (December 30, 1981) or the First Judges Case; Supreme Court Advocates on Record Association versus Union of India or the Second Judges Case (October 6, 1993) and in Special Reference case of 1998 or the Three Judges Case (October 28, 1998).

While the latest controversy over Subramanium may push the government to set up a Commission that will give the executive a say in the matter, law minister Ravi Shankar Prasad has already said that establishing the JAC is one of his main priorities.

It was the previous NDA regime that had first attempted to bring a law to replace the collegium system but the same lapsed due to the dissolution of the Lok Sabha in 2004. The UPA-2 resumed the process, bringing a Constitutional Amendment Bill to establish the said Commission, but it remained pending in the Rajya Sabha.

The ball is once again in the new NDA governments court. It can take the issue forward by setting up the proposed Commission to replace our current judges appointment system which lacks transparency and provides for no oversight. For this, the new regime may not face any roadblock in getting Parliaments approval as there seems to be a political consensus on the broader issue of the need for change.