How to improve collegium system

Jaswinder Singh Baidwan

Akhran da mureed
Staff member
ALL five judges in the NJAC case appreciated the need for improvement. What is the problem? Kurian Joseph J was explicit: “The present collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the collegium system... Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines, resulting in unmerited, if not, bad appointments, the dictatorial attitude of the collegium seriously affecting the self-respect and dignity, if not independence of the judges... The looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept up the expectations of the framers of the Constitution.” To err is human. Collegium is no exception.
Wrong appointments made deliberately and repeatedly is a matter of serious concern. Justice Khehar rightly pointed out: “The sensitivity of selecting judges is so enormous, and the consequences of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of judges to the higher judiciary, make wrongful selections, it may well lead the nation into a chaos of sorts”. The judiciary needs to be saved from its own erratic collegia.
Initially, the Executive used to make appointments with the concurrence of the CJI. As the CJIs were men of integrity, the quality of appointments was very high. Independence of the judiciary was safe. Since 1973 independence was subjected to serious threats. Aggrieved by the basic structure doctrine propounded by the Supreme Court, the Executive superseded three seniormost judges for curtailing Parliament’s power to amend the Constitution at will and made the fourth CJI. During the Emergency, punitive transfers of independent High Court judges were made. Then came the policy decision to pack the judiciary with committed judges. The Bench, the Bar and the public were shocked. The Bar successfully persuaded the Supreme Court to assert the primacy of the CJI in appointments and transfers of judges. Since 1993, the judiciary assumed the onerous responsibility of selection of suitable candidates. The functioning of the collegium system since 1994 has disillusioned all except the collegia concerned. Barring a few outstanding appointments, the quality of selection was poor. Chief Justice SP Bharucha remarked: “The quality of judges has regrettably fallen.”
More than one former CJI has openly acknowledged the existence of corruption in the judiciary. Nani A Palkhivala commented: “Corruption in the upper reaches of the judiciary is illustrative of the incredible debasement of our national character.” A few Chief Justices and senior Judges of High Courts had to resign and some are facing criminal prosecution for corruption. A contempt case is pending against a prominent public interest lawyer for doubting the integrity of half of the CJIs.
Over 65 years ago, Chief Justice HL Kania lamented that respect for the position, status and dignity of the judge had not been fully maintained. Today, the credibility of several judges is questionable. Judicial office has ceased to be attractive to many deserving lawyers. There are still a few leading lawyers who may accept judgeship. It is absolutely necessary to make it attractive. A provision for the revision of conditions of service at reasonable intervals is necessary. The people need independent, incorruptible and efficient judges. The court identified the following criteria for the selection of judges: “legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness”. How many judges appointed since 1994 satisfy the above criteria is anybody’s guess. In the recent judges case, the Executive tried to blame the collegium for bad appointments and the court repelled the attack effectively. As Chelameswar J observed, appointments have always been a joint venture. Both the collegium and Executive are responsible for substandard appointments.
The court is keen to consider suggestions for the improvement of the collegium system on Tuesday next. The need for checks and balances in the selection is indeed pressing. Justice Khehar has made an excellent suggestion which deserves serious thought. He said, to start with, one or more “eminent persons” even a committee of “eminent persons” can be assigned an advisory/consultative role, by allowing them to express their opinion about the nominees under consideration and added that the advisory committee could comprise eminent lawyers, eminent jurists, and even retired judges, or the like, having an insight into the working and functioning of the judicial system, ensuring that the participants have no conflict of interest. The collegium would not be bound by the opinion expressed, but would be obliged to keep the opinion in mind, while finalising the names of the nominated candidates.
Informal consultations take place even now only when the CJI is keen to induct most meritorious candidates. If Justice Khehar’s suggestion is fine-tuned and codified, it would go a long way. A Statutory Search Committee to assist the collegium in the selection of suitable persons is necessary. The President of India may constitute, in consultation with the collegium, a broad-based Search Committee representing all stakeholders, namely the judiciary, the government, the Bar, which is the voice of litigants, and one or two eminent persons, preferably academicians. There are several Search Committees constituted by law, including one in the Lokpal and the Lokayuktas Act, 2013, which help in the selection of suitable persons for the job in question.
Given adequate secretarial assistance, the proposed committee would invite and consider the suggestions received from one and all, including members of the collegium, the government and the Bar, collect relevant data, identify suitable persons, verify their antecedents and prepare panels of deserving candidates for final selection by the collegium. The Bar being the judge of judges, must have a role. Separate Search Committees are required, one for the Supreme Court and the other for High Courts, preferably headed by a reputed retired Chief Justice of India and a retired judge of the Supreme Court, respectively. The criteria for selection adverted to above may be incorporated in the proposed Act, along with necessary guidelines for selection. Members of Search Committees may have a tenure of two to three years. The collegium will consider the panels recommended by the respective Search Committees, and make final selection, if necessary, deviating from the panels for reasons to be recorded. After receiving the recommendations of the collegium, the President may follow the existing procedure of considering the same and, if need be, returning any or all of them for reconsideration by the collegium.
Primacy of the CJI remains intact. To ensure transparency and accountability, information about the selection may be made accessible to the public under the RTI Act after the appointments are made. The suggested method will minimise the scope for favouritism, nepotism, corruption, etc., and facilitate good appointments.