The author, Vyomkesh Didwania, is a 2nd year student at National University of Juridical Sciences, Kolkata
Featured Artwork: Vivekananda International Foundation
The Supreme Court (“SC”) recently directed the Himachal Pradesh High Court (“HC”) Collegium to reconsider the applications of two District and Sessions Court Judges for elevation. The petitioners were aggrieved since the Chief Justice of the Himachal Pradesh H.C. had unilaterally rejected their elevation.
While such interventions by the SC are welcomed, it is one of the multiple recent instances in which the Collegium system has been subjected to criticism while appointing judges. Moreover, the Collegium system also creates a glaring conundrum since the status quo creates a “point of no return” i.e. once the Collegium has taken a decision, there is no real review mechanism in place.
The formation of the Collegium was not provided within the Constitution but was incorporated by the Supreme Court itself, making India the only jurisdiction where the Judiciary appoints itself. While the intent behind the Collegium system was to prevent interference from the Executive, recent appointments made through the Collegium highlight some pressing concerns within its workings. Moreover, the Government’s efforts to instate the NJAC were struck down by the SC for being violative of the Basic Structure. However, while striking down the NJAC, the Court also acknowledged the inadequacy of the Collegium system.
In light of these precedents and the plethora of judicial “mis-appointments”, the question to be asked is whether the Collegium system has become the very thing it was incorporated to prevent.
Therefore, this essay critically examines the issues with the current Collegium appointments vis-à-vis Government interference and transparency. The essay will then be examining the issue of a lack of judicial review over Collegium resolutions by the Courts, and even in cases of review, it creates a paradox for the Courts in practice. Thereafter, a solution is proposed in the form of a Modified Judicial Appointments Commission (MJAC), which could reconcile these issues.
The Collegium and its Issues
The appointed judges echo the political thought of the Executive. The most concerning of these was the appointment of Madras High Court Judge, Justice Victoria Gowri, who had allegations of hate speech against minorities levelled against herself. Even the SC had to reject a petition filed against her appointment since the Constitutional framework did not allow the same, and the Collegium had recommended her. While the Executive cannot be held to have conspired for the appointment of judges with favourable political leanings explicitly, in practice, the plausibility of the same is undeniable. The Centre can choose to suppress relevant information regarding a candidate which, in its opinion, is favourable to the overall Government ideology and, at the same time, weaponize information in the form of IB reports so as to oppose any other candidates. The only reason the Centre can exploit this situation is because the Collegium system is inherently opaque, drawing to light the issue of transparency.
The entire procedure of appointment of judges does not require the Collegium to disclose any reasons regarding the approval or rejection of a candidate. Thus, even with the objective of an independent judiciary and confidentiality in proceedings, the Collegium has created a very high possibility of arbitrary resolutions. In 2017, the SC decided to make the resolutions of the Collegium public in an apparent push for transparency. However, an empirical study into the resolutions made public by the Collegium revealed that the Collegium merely discloses its decisions and does not truly provide access to the real process of appointing judges. The disclosures made by the Collegium resolutions also do not clarify the substance of the consultations and recommendations made by the stakeholders, including the Government, fellow judges, etc. This opacity of procedure has twofold issues: firstly, it opens up the possibility for members of the Collegium to arbitrarily elevate candidates for judgeship; secondly, it also allows the Executive to selectively manipulate the procedure to elevate the candidates of their preference for elevation.
Lack of Effective Judicial Review Over Collegium
Considering the pertinent issues highlighted above, it would be rational to believe that an immediate remedy in the form of judicial review could provide some form of reform. However, the review mechanism on the Collegium system is firstly, very narrow in scope and secondly, there is a paradox created within the review mechanism.
In Victoria Gowri’s elevation, the SC dismissed the petition stating that only “eligibility” and not “suitability”; and “consultation”, not “effective consultation” are the grounds on which a Collegium decision can be reviewed. The SC, while making this decision, relied on the assumption that the consultation procedure within the Collegium has been sufficient and exhaustive in nature. However, as was the situation in this case, there is a glaring loophole created when the Collegium itself errs in choosing a candidature for a recommendation based on information which, it conceded, had been overlooked on its part. Recently, Victoria Gowri was also elevated as a Permanent Judge in the Madras HC. The Courts rely on the precedent set in Shanti Bhushan v. Union of India that held that fresh consultation is not required for permanent elevation, since the rigours of consultation are already met at the initial stage of appointment. Logically, the situation in Victoria Gowri’s appointment created a loophole since the initial consultation process itself had not been adequate, and for elevation to permanency, no fresh consultation is required.
This has created a very concerning situation because now, hypothetically, if a candidate is elevated for judgeship, on whom subsequent information is disclosed challenging their merit, neither the Collegium, the Court, nor the Executive can do anything to review or stop such appointments.
The other issue is that even if judicial review is allowed on a Collegium Resolution in the form of a Special Leave Petition (“SLP”) under Article 136, it creates a paradox against the SC itself. Since the resolutions of the SC Collegium are made by the five seniormost judges of the SC, and an SLP will only be listed before them, or any of their junior colleagues, it will create a dilemma for any sitting judge to decide against a resolution made by the five of the senior most judges of the Court. As was evident in the case of Victoria Gowri, the bench hearing the petition was very uncomfortable to go against the Collegium itself.
While an argument against greater judicial review can be made on the possibility of frivolous petitions and undermining the finality of the Collegium appointments, when the stakes are as high as the selection of judicial officers, there needs to be some sort of a review mechanism.
MJAC: A Possible Way Out
The SC struck down NJAC on the grounds of violation of the Basic Structure since it vested too much power in the Executive. If reference is drawn to the South African constitutional jurisprudence, which shares similar features as the Indian Constitution, including federal structure, inclusion of directive principles, a federal structure, and an independent judiciary, a solution to the present conundrum may be found.
In South Africa, the appointment of Judges is made by a Judicial Service Commission (“JSC”), to which applications are made by prospective candidates for appointments. The proceedings of the Commission are subject to judicial review and made public. If a similar model is designed in compliance with the needs of the Indian Judiciary, in the form of a Modified Judicial Appointments Commission, a major chunk of the present problems of the Collegium can be resolved. Applications would be invited from all prospective candidates, with the eligibility criteria being as per the constitutional mandates. The question of eligibility is not contended, rather it is suitability, upon which most of the judicial appointments are questioned upon. While eligibility is an objective checklist that any candidate needs to satisfy in order to be eligible to be considered, suitability is the decision of appointing authority.
The constitutional requirements are framed in a broad and general terms, they only provide a minimum threshold for candidacy. Therefore, a set of guidelines are required to be adopted by a body such as MJAC, similar to what the JSC has been following. The primary difference shall be that instead of the Commission actively deciding whom to elevate as a Judge, the MJAC shall only work on selecting the appropriate candidate from the pool of applications. The MJAC’s decisions would need to be based on the set of guidelines, and proper explanations would be required for any exceptions. Moreover, its proceedings, criteria/reasoning of selection/rejection, if made public, will go a long way in addressing the issue of transparency in the present system.
Regarding the composition of the MJAC, the primacy of the Chief Justice of India (“CJI”) is to be maintained, hence the presiding role is to be kept with the same position. With the binding precedent as set in the Fourth Judges’ case, the only way to create a constitutionally valid, and at the same time, a better judicial appointment structure would be to increase the number of representatives in the Commission. The plurality of opinions, and the diversity of representation should theoretically ensure that there are no arbitrary decisions made, as have been done through the Collegium that currently consists of only five members. The primary reason for arbitrariness, is the concentration of decision-making authority in the hands of a few; an increase in the number of members of the MJAC should ideally be able to dilute the possibility of arbitrariness. Another collateral benefit would be that it would reduce the workload on the five senior-most judges, and provide them with more time to dedicate to their primary duty of adjudication.
While the exact number of members in the MJAC is the prerogative of the Parliament, ideally, there should be equitable representation from the SC, all the HCs, the Ministry of Law and Justice as well as members of the Bar, as has been with the JSC. Amidst all this, the CJI would always have an overruling veto power, if any decision, in the eyes of them, would threaten the independence of the judiciary. However, a more diverse and inclusive system of judicial appointments is the best alternative against the current system of Collegium which has been alleged to be nepotistic, arbitrary, and indulging in favouritism.
The only possible contention could be its composition, something which led to the striking down of the NJAC. However, if the primacy of CJI is maintained within the MJAC, the issue with the NJAC composition will be resolved, and it shall also not lead to a rebranded Collegium since the selection will have to be made from the pool of applications.
It is proposed, therefore, that the Parliament could implement a better-drafted, well-reasoned and constitutionally valid MJAC, which could significantly address the lacuna of the Collegium system.
Conclusion
It is undeniable that the current system of Collegium suffers from certain fundamental flaws of transparency, state interference, and accountability, which call for a substantive overhaul of our Judicial Appointment System. The NJAC was rushed, had interference with the independence of the Judiciary, and was struck down for these reasons. However, if the State reassesses the situation, and implements MJAC or a model similar to it based on the South African example, it can satisfy the twin needs of ensuring a more transparent judicial appointment procedure and preserving the independence of the judiciary.
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