The controversy over the proposed elevation of Justice P.D. Dinakaran of the Karnataka High Court to the Supreme Court by the collegium of the Chief Justice and four senior-most judges of the Supreme Court and the criticism of overlooking of apparently suitable judges by the collegium has brought into focus the present method of selection of judges of the Supreme Court and High Courts by the Supreme Court collegium.

The method of selection of judges by a collegium of Supreme Court judges finds no place in the Constitution. The Constitution confers the power of appointment of judges on the President of India i.e. the Government of India to be made in consultation with the Chief Justice of India and other judges of the Supreme Court and the High Courts. How then did a collegium of judges of the Supreme Court come to exist and come to possess this power?

The collegium method was created as a result of two judgments of the Supreme Court, first in 1993 (Supreme Court Advocate-on-Record Association case) and by a follow-up President’s Reference to the Court in 1998. With the best of intentions of securing the independence of the judiciary, the Supreme Court rewrote the provisions of the Constitution for appointment of judges and appropriated the power to appoint judges by the judges. By the first case the power was vested in the Chief Justice of India in whom it was held the primacy lay in appointments assisted by two judges of the Supreme Court. In the second case the court took away the primacy of the Chief Justice of India and vested the power in a collegium of the Chief Justice of India and four senior-most judges of the Supreme Court.

The clear intention of the Constitution makers in the Constituent Assembly debates of not making the Chief Justice of India the final authority was disregarded. Inversing the constitutional provisions, the Chief Justice of India and the collegium became the initiator and appointer of judges, and the President of India was made only a formal approver in the process. These judgments are prime examples of overreaching by the Supreme Court. Indeed, in the second judgment of 1998 the Court went to the extent of extracting a statement from the government that it was not seeking a reconsideration of its earlier judgment of 1993, and government would also accept and binding the judgment it was delivering.

The essential features of this judicially created system of appointments is that the collegium selects judges on their own assessment of the merits of a person and the government is bound to appoint the selected person except in a rare case of the collegium having overlooked some aspect of the incumbent not being a suitable judge. Even here, government’s view can be disregarded by the collegium by reasserting its choice. The executive has little or no role in the appointment of judges as a result.

Prior to the first judgment in 1993, as a matter of convention the government always consulted the Chief Justice of India in the appointment of judges and there were only a few appointments without the concurrence of the Chief Justice of India. The period of the Emergency was an exception. The ablest judges appointed to the Supreme Court were by appointments made prior to the collegium system. It is hard to understand the necessity to overturn the Constitution’s prescription by the Supreme Court in this manner.

In prescribing the appointment to judges of the Supreme Court and the High Courts by the collegium, the Supreme Court did not realise the burden it was imposing on the collegium of selecting judges for the Supreme Court and High Courts and transferring them from one High Court to another. At any given time there are two to three vacancies in the Supreme Court, and 200 in the 22 High Courts and the transfer of a number of judges to be made. An administrative task of this magnitude must necessarily detract the judges of the collegium from their principal judicial work of hearing and deciding cases. The collegium neither has a secretariat to shoulder this burden nor an intelligence bureau to make appropriate inquiries of the competence, character and integrity of a proposed appointee.

Lacking this infrastructural backup the collegium resorts to ad hoc informal consultations with other judges in the Supreme Court who are expected to know the merits of a proposed appointee from a High Court or occasionally by sounding a member of the Bar. These methods are poor substitutes for a full time intensive collection of data about an incumbent, his work, standing, merit, integrity and potential which requires to be made considerably in advance for filing in the vacancy. Besides, the collegium’s deliberations are secret, the system is opaque and the choice of a judge is only known when his name is forwarded to the Government for formal appointment.

The collegium has necessarily limited its field of choice to the senior-most judges from the High Court for the appointments to the Supreme Court, overlooking the several talented junior judges in the High Courts or members of the bar. Limiting the zone of selection to senior-most judges of the High Court has induced legitimate expectations in them to be promoted to the Supreme Court and consequent disappointment when they are overlooked.

To be fair to the present collegium of the Supreme Court it has inherited a system with these limitations given to them by the two judgments of the Supreme Court. With the best effort and good faith the collegium suffers from institutional handicaps in its selection. For that it is today easily pilloried by critics for making wrong choices or overlooking the right persons. Conscious of the criticism of the collegium system the CJI, K.G. Balakrishnan has said that until the system is changed he is bound by the two judgments. It is ironical that those who created the collegium and argued in favour of vesting the power of appointment in judges today find faults in the working of the system.

What then should be done to remedy the situation? There is a consensus that in today’s political conditions the power of appointment of judges cannot be restored back to government. In several countries of the Commonwealth, National Judicial Appointment Commissions have been established to select judges. Such judicial commissions have worked with success in the U.K., South Africa and Canada. The advantage of judicial commissions are that they are independent, broad based and they represent not only the views of the judiciary but also of the executive and other sections of society. They are transparent in their working even to the extent that applications are invited by public advertisement, as was the case when judges were appointed to the new Supreme Court of the U.K. recently.

In India proposals for the establishment of a National Commission for Judicial Appointments have been made at various times. The Law Commission in 1987 recommended a broad based body of judges and other person to make recommendations for the appointments of judges. A Constitutional Amendment Bill was tabled in Parliament for the establishment of such a Commissions in 1990 but it lapsed. The National Commission to Review the Constitution 2002 set up by the Government of India favoured a National Judicial Commission with a predominance of judicial members as an alternative to the collegium system. With the size of the Indian superior judiciary, it may be necessary to have two judicial commissions in India, one for the Supreme Court and another for the High Courts.

Would such Commissions be successful in India? There are justifiable doubts about finding independent and competent members who would not be influenced in their decisions. This raises the vexed question whether the present system with suitable modifications should be continued or judicial commissions should be introduced in India.

( The writer is a Senior Advocate of the Supreme Court & former Solicitor-General of India.)

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