May 13, 20193 min read

FAILURE OF THE WORKING OF COLLEGIUM SYSTEM

NEWS : For the second time in 12 months, the Supreme Court collegium has asserted itself against the executive on matters of judicial appointments and insisted on the elevation to the top court of two high court judges it has recommended, and proposed two more names, including the first Scheduled Caste nominee to the bench in a decade.

DISAGREEMENT : . It has become routine to hear that some recommendations for High Court appointments, as well as elevation to the Supreme Court, have met with disapproval from the government.

RECENT RECOMMENDATIONS MET WITH DISAPPORVAL: The latest development concerns Jharkhand High Court Chief Justice Aniruddha Bose and Gauhati High Court Chief Justice A.S. Bopanna, who were on April 12 recommended for elevation to the Supreme Court. The government had sought a reconsideration of the two names. The collegium has now repeated its recommendations, emphasising that there is nothing adverse against the two judges in terms of their “conduct, competence and integrity” and that there is no reason to agree with the government.

REAL ISSUE : This suggests government’s an oblique motive to thwart or delay the appointment of particular nominees.

LEGAL POSITION : The government can only object to it once and if the collegium reasserts its recommendation, the government has to go by the recommendation. And this position is very important for the independence of the judiciary.

IS COLLEGIUM CORRECT MECHANISM TO CONTINUE WITH JUDICIAL APPOINTMENTS ?

The process of filling up vacancies depends on the relative speed with which the collegium initiates proposals for appointments and makes its recommendations after internal deliberations, and the time the government takes to process the names.

NEED FOR NEW PERMANENT, INDEPENDENT BODY : The process for the appointment of judges lies at the heart of an independent judiciary. Over the years, this process has manifested itself in the questionable form of the Collegium of judges, which decides on appointments to both the SC and the high courts. However, it is time to think of a permanent, independent body to institutionalise the process.

NJAC MAJORITY JUDGE – REGRETS HIS DECISION : Former Supreme Court judge Justice Kurian Joseph, who was part of the Constitution Bench that in October 2015 held the National Judicial Appointments Commission (NJAC) unconstitutional and struck down the NJAC Act by a 4:1 majority said that,

“As far as Collegium is concerned… I made scathing criticism of the Collegium (in the NJAC judgment). Hardly anything has been done to improve the Collegium system. We spoke about the secretariat. But there is no secretariat. My suggestion on improvement of Collegium has not been done. Only improvement is that resolutions are uploaded. This is why I started regretting. According to me, it has gone to worse… the existing system is defective and it needs to be streamlined”

PROBLEMS WITH COLLEGIUM : The lack of a written manual for functioning, the absence of selection criteria, the arbitrary reversal of decisions already taken, the selective publication of records of meetings — all of these point to the fact that the Collegium is not only as opaque as it was, it may perhaps have become worse.

WAY FORWARD : No system of appointment of judges anywhere in the world is free from criticism. However, the system of inviting applications, interviewing the candidates and appointing them on merit and encouraging diversity, as is being done in the United Kingdom through an institutional mechanism, appears to be better suited to Indian conditions.

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