Some of the problems with the collegium system of judicial appointments that law minister Kiren Rijiju listed at a public event earlier this week are quite valid. Concerns over the transparency of collegium decisions remain, despite the 2017 Supreme Court announcement that the reasons of selecting or transferring a judge will have be put up on the court’s website. In September 2019, the SC collegium’s decision to transfer the Madras High Court chief justice to the Meghalaya high court met with protests from the Bar but the SC, quite inexplicably, refused to lift the veil of secrecy and merely said there were “cogent reasons” for the transfer. Similarly, the minister’s complaint about the “Uncle Judge syndrome”—where familiarity with a candidate could possibly influence the choice of a judge—deserves serious consideration. Indeed, this particular problem has vexed even members of the judiciary—in February 2020, Justice AK Sikri, a former member of the SC, had said that “most times, we (the collegium)” go by “our impression” while taking appointment/transfer decisions…” It can be argued that even the alternatives proposed, including the NDA government’s National Judicial Appointments Commission, could suffer from the same ailment. But, it is also a fact that the current system has led to an outsized representation of the members of the bar and high court benches in the top-most rung of the judiciary, imposing a ceiling of sorts for the members of the subordinate judiciary. This has led to an ‘old boys club’ dominating the higher judiciary.
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Do the judges consume an unwarranted amount of time in searching for future members of their fraternity, as Rijiju suggests? While some collegium decisions have been timely, there are instances of the collegium having been slow to come up with recommendations. Experts believe the latest instance, where the collegium system failed to function as scheduled in the short tenure of CJI UU Lalit, doesn’t speak too well about the system. At the same time, a large part of the blame must lie at the government’s doors, too, since it has delayed ratification of collegium decisions for weeks quite a few times. So, while the judges’ primary duty is jurisprudence, if they have been vested with the duty to select judges, they shouldn’t be faulted if a thorough evaluation takes time.
The minister is however off track in suggesting that it should be the government’s responsibility to appoint judges. The collegium system guards the judiciary from executive interference, and gives the pronouncements of the higher judiciary the sanctity of being politically independent. Rijiju mentions other countries where the executive has been vested with powers to appoint judges. The answer is evident in how political appointments to the Supreme Court in the US led to the scrapping of the Roe vs. Wade judgment and the constitutional right to abortion in that country, with consequences for women’s health, safety and bodily autonomy. Again, a politicised SC clipped the powers of the US Environment Protection Agency on regulating power plants—this has consequences for the entire world. The problems of the collegium system can be addressed without scrapping it—mandatory revelation of reasons for recommendations must be the norm. Also, there should be fixed and well-publicised criteria for selection/consideration of candidates, as well as a data-driven mechanism to screen for conflict of interest cases. This is necessary to make the collegium system more accountable, even if that requires judges to come off their high horses.