Many years ago, Justice V. R. Krishna Iyer, a celebrated jurist, had criticized the collegium system in one of his articles published in The Hindu on 18 August 2012. This is what he had said in his piece: "Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own make the selection. There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails. In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone". Justice Iyer's words are very relevant even today when several people are raising objections against the decisions and decision-making process of the collegium.
In his academic opinion, Justice Krishna Iyer had also suggested some measures to bring a new system to appoint the judges of the constitutional courts. He had emphasized the need to adopt a better criterion to select the judges for the constitutional courts. He had said: "In the process of selection, an investigation into the character, class bias, communal leanings, and any other imputations that members of the public may make, may have to be investigated. This has to be done not by the police, which function under the government, but by an independent secret investigation agency functions under the commission's control. These and other views expressed by outstanding critics may have to be considered".
Further, Justice Krishna Iyer had strongly advocated the need to establish the National Judicial Appointments Commission to select the judges of the Supreme Court and High Courts under the leadership of the Chief Justice of India. He had envisioned the commission in these insightful words: "The commission has to be totally independent and its ideology should be broadly in accord with the values of the Constitution. It should naturally uphold the sovereignty of the Constitution beyond pressures from political parties and powerful corporations, and be prepared to act without fear or favour, affection, or ill-will. It should act independently-such should be its composition and operation. The commission should be immune to legal proceedings, civil and criminal. It should be removed only by a high tribunal consisting of the Chief Justice of India and the Chief Justices of all the High Courts sitting together and deciding on any charges publicly made. We, the people of India, should have a free expression in the commission's process." Today, India needs such a system to appoint judges in the higher judiciary.
In 2014, the Modi Government took notice of the collegium's faulty process and replaced it with the National Judicial Appointments Commission (NJAC) by amending the Constitution for making the appointments of judges of the Supreme Court and the High Courts more transparent and objective. The NJAC was to be headed by the Chief Justice of India and was comprising some other members such as two senior-most judges of the Supreme Court next after the CJI, Union Minister of Law and Justice, and two eminent jurists. But the Supreme Court did not allow the Central Government to eliminate the collegium system and struck down the constitutional amendment including the NJAC in 2015. The Court observed that the NJAC hampered the independence of the judiciary, a basic feature of the Constitution. However, the Supreme Court also admitted some faults in the collegium system's working in the NJAC case. Justice Kurian Joseph, in his judgment, had exposed the loopholes of the collegium system in these words: "To that extent, I agree with Chelameswar, J. that the present collegium system lacks transparency, accountability, and objectivity. The trust deficit has affected the credibility of the collegium system, as sometimes observed by the civil society. Quite often, the very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. 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 respect and dignity, if not, independence of judges, the court, particularly the Supreme Court, often being styled as the Court of the Collegium, 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. Though one would not like to go into a detailed analysis of the reasons, I feel that it is not the trusteeship that failed, but the frailties of the trustees and the collaborators which failed the system. To me, it is a curable situation yet."
Since the NJAC verdict, unfortunately, nothing has changed on the ground and the collegium is still working with great opacity and secrecy. The concerns raised by the judges in the NJAC case have not yet been addressed properly. Nobody, except the five collegium members, knows how it selects the judges and how it rejects them. Several senior judges have been superseded by the collegium during the last few years. Many judges of the High Courts have been transferred without assigning any reason. During the collegium system, the High Courts are functioning just like subordinate courts to the Apex Court. There is no remedy against the omissions and commissions of the collegium. Chances of judicial review against the collegium's decisions are also remote. The collegium is not accountable to any constitutional authority. It exercises huge powers without any checks and balances. Even the Full Court meetings of the Supreme Court are not held to discuss the collegium's decisions, and resolutions. An aggrieved judge, who is bypassed, has no remedy to redress his/her grievances. The recent memoirs of former Chief Justice of India Ranjan Gogoi reflect the poor state of affairs of the collegium system. Who will judge the judge-makers? Who will ensure transparency in the decision-making process of the collegium? Has not the time come when Parliament should once again enact a law to replace the collegium system to make it more transparent, accountable, and inclusive? Can the Central Government remain a mute spectator or should it come forward, bring the issue before Parliament, and improve the appointment process of judges of the Supreme Court and High Courts? The answer is yes. The government and Parliament should make better arrangements for the appointments of judges to the higher judiciary to strengthen people's faith in the institution of the judiciary and make it more inclusive. The Supreme Court collegium cannot be the sole arbiter in making judicial appointments to the constitutional courts.
Notably, not only the judges have criticized the functioning of the collegium system, but a former President of India Mr. Pranab Mukherjee has also criticized this system strongly in his memoirs titled "The Presidential Years 2012-2017". Mr. Mukherjee criticizes the collegium system in these words: "I have serious doubts over the present arrangement, and the judiciary ought to relook into the issue…..it is possible that the judiciary has come to mistrust the executive or the legislature and, therefore, does not want them to have decisive powers on the appointment of judges. It does not, in its own words, wish to be caught in a 'web of indebtedness' through the NJAC. This mistrust is not good for the healthy administration of the country and should be avoided. Better communication between the parties concerned can help in dispelling such mistrust". This is not an ordinary criticism. Policy-makers should take these words seriously.
Given the above discussion, the time has come when the Supreme Court collegium should be replaced by a National Judicial Appointments Commission to ensure quality appointments in the higher judiciary. Obviously, the Chief Justice of India should be empowered to head the NJAC, comprising a few other members from the judiciary, executive, legislature, and the bar. A transparent and accountable system is necessary to sustain the people's faith in the judiciary and no constitutional authority including the judiciary can be given absolute powers to appoint judges of its own choice. Let it be a collaborative process. Judges hold high constitutional offices and exercise great powers to deliver justice to the people according to the constitutional scheme. Thus, the process must be more democratic and inclusive. Admittedly, the collegium system has failed to achieve the targets set by its makers in the 1993 judgment. The existing arrangements hardly leave any space for the Central Government which is the essential stakeholder in the judicial system of the country. The government cannot be treated like a postman. The Central Government is collectively responsible to Parliament, not the judiciary. The government represents the collective will of the people who make/unmake the governments. This is why the government should also have an effective say in judicial appointments to be made in a collaborative manner for protecting the independence of the judiciary. This will indeed be a great tribute to Justice Krishna Iyer, a great defender of judicial independence and the rule of law.
Lokendra Malik is an Advocate at the Supreme Court of India.
[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]