There is now near unanimity that the collegium system to select judges for the higher judiciary has failed. It has been found opaque and ridden with controversies. Markandey Katju’s recent revelations have driven the last nail in its coffin
Mr Markandey Katju’s allegations against his former colleagues in the Supreme Court have sparked a debate on corruption and opaque procedures for appointment in the higher judiciary. Eminent jurists like Soli Sorabjee and Attorney General Mukul Rohatgi have questioned Mr Katju’s timing and said he had spoken out late in the day, years after the judge in question died, and that he was berating the system of which he was a beneficiary. But some other judges and lawyers have hailed the former Supreme Court judge as a whistleblower exposing the shoddy going-on in the higher judiciary.
Mr Katju has definitely brought to light the malfunctioning of the collegium system of appointment of judges in the higher judiciary and the need for revisiting the entire process. Article 124 of the Constitution vests the power of appointment of judges to the Supreme Court and the High Courts in the President of India. The Constitution provides that the President will make these appointments after consultation with the judges in the Supreme Court and High Courts that he deems necessary. The Constitution speaks of, “after consultation” and not “in consultation” in the case of appointment of judges other than the Chief Justice of India. The Constitution further lays down that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted. The appointment of the High Court judges is also made by the President in consultation with the Chief Justice of India and the Governor of the State.
In 1993, in the Second Judges’ case, the Supreme Court ruled that the opinion of the Chief Justice of India along with four senior-most colleagues is determinative and binding on the President. This is almost an attempt by the judiciary to rewrite the law through this judgement. The new construction makes the Supreme Court and the High Courts virtually undemocratic. Opacity of its functions and the hubris of the judiciary, which considers itself as the sole guardian of the judicial independence in India, have engendered a process that is indefensible and shrouded in secrecy. Even some of the former Chief Justices, who believed in giving power exclusively to the judiciary in the matter of appointment of judges, have revised their opinion.
In July 1999, the President sought the court’s opinion relating to the appointment of judges and transfer of High Court judges. A nine-judge bench of the Supreme Court (presidential reference AIR 1999 SC) reiterated that primacy is to be given to the opinion of the Chief Justice as laid down in the 1993 judgement, but also stipulated that the collegium should make the decision in consensus. And, unless the opinion of the collegium is in conformity with that of the Chief Justice of India, no recommendation is to be made. It has been found that in practice the present system of selection lacks transparency and is characterised by gross favouritism. No published criteria are followed by the collegium for choosing judges. little is known about short-listing procedures, and no reasons are communicated for its decision. Justice Krishna Iyer has called the present arrangement “incestuous”, because judges only react and talk to one another of their own kind. The collegium system has been described by the present Chairman of the law Commission, retired Justice AP Shah, as a “cabal” which has failed as the favourites get appointed and the rest are left out.
Right from 1950, the appointment of judges has been broadly based upon the recommendations of the Chief Justice of the Supreme Court and High Courts, except during the Emergency. It was rare that any appointment was made without the concurrence of the Chief Justice. The Parliamentary Standing Committee on law & Justice recommended doing away with the existing collegium system and called it “a disaster”. Former Chief Justice of India AM Ahmadi, who had opposed the creation of collegium system by writing a dissenting judgement, favoured a return to the pre-collegium mechanism as there are serious concerns about the effectiveness of the present system.
Mr Katju’s revelations, though one may have reservations on its timing, are true. In a writ petition filed by Mr Shanti Bhushan and Ms Kamini Jaiswal, the Supreme Court had on December 17, 2008, criticised former Chief Justice RC lahoti, for surrendering the judiciary’s primacy and swaying to Government’s view in granting extension of service to the Madras High Court judge who was viewed as corrupt and against whom there were adverse reports by the Intelligence Bureau. The Bench observed that judges, like Caesar’s wife, should be above suspicion.
The law Commission, suo motu, studied the law on the subject as well as the various recommendations of the parliamentary committees and the law in countries like Australia and Canada where the executive appoints judges in consultation with the Chief Justice of the country. There is another problem. The collegium of judges, headed by the Chief Justice, is not often conversant with the names and the antecedents of the candidates for judicial posts. Very often, the appointments suffer due to lack of information. Mr Fali S Nariman perceptively observes in his book, The State of the Nation, “With the ‘collegium system’ as it now exists, it is not as if good judges are not appointed. But the possibility, and more often the probability, that better ones may have been appointed sans the collegium cannot always be ruled out. There is simply not enough ‘homework’ done in the matter of recommendation of judges to the highest court.”
In South Africa, the new Constitution has adopted a judicial commission for selection of judges. The law Minister is formally consulted and he gives his comments on the appointees and recommendees of the judiciary. The comments of the law Minister are considered with respect and attention. In India, during the NDA rule, then law and Justice Minister Arun Jaitley had in 2003, in the aftermath of the sex scam that led to the resignation of Delhi High Court judge Saumit Mukherjee, come up with a Constitutional Amendment Bill proposing a National Judicial Commission that sought to involve non-judicial members not only in the appointment of judges but also in disciplining them. Instead of improving on the Bill, succeeding law and Justice Minister HR Bhardwaj rolled back the reform of involving other stakeholders. By proposing a National Judicial Council consisting of only serving judges, he acceded to the judiciary’s claim that any effort to open up the process of judicial accountability would compromise independence.
A high-level meeting of the top jurists, lawyers, Ministers and academics supported scrapping of the collegium system and replacing it by a National Judicial Commission that should include representatives from the judiciary, executive, legislature (including the leader of the opposition) and eminent persons from the civil society. This will make the judiciary accountable to the people it serves. However, this should be done without curbing judicial independence in the name of accountability.
But, after Mr Katju’s revelations, there is a growing consensus in favour of a National Judicial Commission for appointments to the higher judiciary. It may be mentioned that some discerning columnists have criticised the over-reliance on the report of the Intelligence Bureau to adjudge the character and competence of the judges. The fact is, to check the suitability of a candidate, the IB report is one of the inputs and not the only input. Very often, IB reports reflect what is already known about the reputation of a judge by many in the State he has served in. The truth of the matter is that, (and I can say from personal knowledge), IB reports are not always accepted uncritically. However, there have been instances, as during the Emergency, when the Government used the motivated IB reports to block the promotion of some inconvenient judges.
(The writer is a former Director General of the National Human Rights Commission and former Director of National Police Academy)