By Sudha Ramalingam
The Supreme Court in the recent ruling striking down the NJAC Act and the 99th constitutional amendment has admitted to shortcomings of the collegium system of judicial appointments. As we know, the collegium system is the product of our unique history and is reflective of our distrust of the executive branch of the government. Independence of the judiciary, which is undoubtedly an essential feature of our constitution, has come to mean that there can be no executive involvement in judicial appointments. Primacy of the opinion of the judiciary in judicial appointments is even read as a part of the basic structure of the Constitution.
The collegium system has had several detractors, including Justice J.S.Verma who was one of its architects, owing to its lack of transparency and accountability. We have also seen that the collegium system has not been an unqualified success; several judges appointed through this system are noted for their lack of integrity and/or ability and have been an embarrassment to the judiciary. The collegium system of judicial appointments has also not helped in achieving diversity amongst judges. We see that the pedigree of prospective judges, whether it be familial connections or professional relationships in the form of senior-junior relationship with existing judges, invariably play a crucial role in appointments.
The collegium relies on formal criteria such as number of years of litigation, whether the person has appeared in cases that have been reported in law journals, and whether a person is an income tax assessee. Presently, direct appointments of judges of High Courts are done by the Chief Justice and two senior most judges of the said High Court. The Chief Justice is most often new to the High Court, having litigated and served as a judge in a different State, with little knowledge of the local Bar and its advocates. The Chief Justice would therefore have to extensively rely on the other members of the collegium. There is no mandatory requirement of broader consultations, and the process of picking and choosing members of the Bar is inherently subjective. This process can further be muddied and abused by lobbying efforts of some advocates seeking judgeship. It must be noted that most appointments are the product of sustained lobbying by aspirants; very few are actually called to the Bench by the collegium directly upon assessing their calibre.
Judges who are promoted from the lower judiciary are subject to tests at entry level and are constantly appraised through their career. Direct appointees from the Bar have no such testing requirements, and thus need to be carefully chosen. There could be a search committee constituted of eminent lawyers (who do not aspire to enter the judiciary) and judges (sitting/ retired) who could recommend names of persons from the local Bar who they deem fit to be appointed to the higher judiciary. The search committee which would act as a pre-screening committee could even conduct tests to assess the candidate/prospective judge’s ability, sensitivity to social issues and integrity.
The collegium could use the recommendations of the search committee and finally decide on appointments. Engagement of civil society and stakeholders in judicial appointments is necessary. The current system is insular and does not invite any public debate on judicial appointments. The search committee should release a list of persons that it recommends for judicial appointments and facilitate debates or discussions as to the prospective appointees. Given the severe democratic deficit that the Indian judiciary is accused of, such broader consultation with the civil society (not just the Bar and Bench) is crucial in ensuring transparency and accountability of the judicial branch.
The author is a senior lawyer practicing in the MadrasHigh Court.