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In recent weeks, the Supreme Court of India’s collegium has been busy. New judges have been appointed to the Court on its advice and long overdue vacancies have been filled up.

Read this before proceeding:

Collegium recommends nine judges for Supreme Court

What is the matter of concern?

Ans. Transparency in appointments

• These recommendations are seen as reflective of a new and proactive collegium.
• What ought to concern us, though, is that long-standing apprehensions about the collegium’s operation remain unaddressed: specifically, its opacity and a lack of independent scrutiny of its decisions.
• These misgivings are usually seen in the context of a battle between the executive and the judiciary.
• Less evident is the effect that the failings have on the status of the High Courts.
• Today, even without express constitutional sanction, the collegium effectively exercises a power of supervision over each of the High Courts.

No specified reasons for Exclusion

• For nearly two years, despite vacancies on the Bench, the collegium made no recommendations for appointments to the Supreme Court.
• The conjecture in the press was that this logjam owed to a reluctance amongst some of its members to elevate Justice Akil Kureshi to the Court.
• Indeed, it was only after a change in its composition that the panel recommended on August 17 a list of names for elevation. This list did not contain Justice Kureshi’s name.
• The perfunctory nature of the collegium’s resolutions means that we do not know the reasons for his exclusion.
• We also do not know why five Chief Justices, including Justice Kureshi, and several other puisne judges are now being transferred to different courts.

The public has right to know

• This is not to suggest that these decisions are unfounded. It is possible that each of the choices made is predicated on administrative needs.
• But whatever the rationale, surely the public has a right to know.

What is needed?

Ans. Striking a balance in Separation of Power

• Separation of powers is a bedrock principle of Indian constitutionalism. Inherent in that idea is the guarantee of an autonomous judiciary.
• To that end, the process of appointing and transferring judges assumes salience.
• But the question of how to strike a balance between the sovereign function of making appointments and the need to ensure an independent judiciary has long plagued the republic.

As suggested by Dr. Ambedkar

• The Constitution’s framers wrestled over the question for many days. Ultimately, they adopted what Dr. B.R. Ambedkar described as a “middle course”.
• That path stipulates the following: Judges to the Supreme Court are to be appointed by the President of India in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit.
• Judges to the High Courts are to be appointed by the President in consultation with the CJI, the Governor of the State and the Chief Justice of that court.
• In the case of transfers, the President may move a judge from one High Court to another, after consulting the CJI.

Where does primacy rest?

Ans. In a transparent Collegium system

• In this design, there is no mention of a “collegium”.
• But since 1993, when the Supreme Court rendered a ruling in the Second Judges Case, the word consultation has been interpreted to mean “concurrence”.
• What is more, that concurrence, the Court held there, ought to be secured not from the CJI alone, but from a body of judges that the judgment described as a “collegium”.
• Thus, the Court wound up creating a whole new process for making appointments and transfers and carved out a system where notional primacy came to rest in the top echelons of the judiciary.

This procedure has since been clarified.  But there is, in fact, no actual guidance on how judges are to be selected.

The NJAC and after

• In 2015, Parliament sought to undo the procedures put in place by the Court through the 99th Constitutional Amendment.
• The National Judicial Appointments Commission (NJAC), that the law created, comprised members from the judiciary, the executive, and the lay-public.
• But the Court scrapped the efforts to replace the collegium and it held in the Fourth Judges Case that judicial primacy in making appointments and transfers was an essential feature of the Constitution.
• In other words, the Court held that a body that found no mention in the actual text of the Constitution had assumed a position so sacrosanct that it could not be touched even by a constitutional amendment.

Assessing the NJAC

Ans. The NJAC was far from perfect

• There were legitimate fears that the commission might have resulted in the appointment of malleable judges.
• Therefore, it is plausible to argue that until a proper alternative is framed, the collegium represents the best solution.
• This is that allowing senior judges of the Supreme Court primacy in matters of appointments and transfers is the only practical way to guarantee the independence of the judiciary.

Promises are yet unfulfilled over transparency

• When the Court struck down the NJAC, it also promised to reform the existing system. Six years down the line those promises have been all but forgotten.
• The considerations that must go into the procedure for selecting judges is left unexplained.
• The words “merit” and “diversity” are thrown around without any corresponding debates on what they, in fact, mean.
• Somehow, amidst all of this, we have arrived at a consensus that enveloping a veil over the process of selection is essential to judicial autonomy, and that there is no legitimate reason why the public ought to know how judges are chosen and transferred.

Way forward

• It is clear that we have come a long way from a time when Chief Justices of High Courts declined invitations to the Supreme Court, because they valued the work that they were already entrusted with.
• Restoring High Courts to that position of prestige must be seen as essential to the process of building trust in our Constitution.
• Achieving this will no doubt require more than just a tweak in the process of appointments.

Conclusion

• It is clear is that the present system and the mysteries underlining the decision-making only further dilute the High Courts’ prominence.
• At some point we must take seriously the task of reforming the existing scheme because the status quo is ultimately corrosive of the very institutions that it seeks to protect.

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