A collegium of a high court that works with a panel of local judges and lawyers may be the best way to ensure merit in the higher judiciary
There is growing angst and dissatisfaction with the collegium system of appointment, in which senior judges of the High Court offer recommendations to the executive on appointments of new judges. The secretive nature of such important appointments has led to calls for disbanding a system suspected of promoting nepotism and bias. While one needs to empathise with these concerns, it is imperative that the collegium system is continued due to its intrinsic merit as long as new safeguards and creative measures are employed to decrease opacity in the timely filling of judicial vacancies.
Need for transparency
Being at the helm of affairs in their respective High Courts, judicial collegiums are well-positioned to select high quality judges. A judicial committee residing in Delhi would not be effective in assessing the judicial candidacy of a lawyer practising in Sikkim or Kochi, unless it conducts a thorough selection process similar to the Indian Administrative Service. The judges and the Bar in a particular State have the field advantage of assessing a local candidate. Therefore, the need of the hour is to usher transparency in the collegium system and not replace it.
We make here a few suggestions to improve the existing collegium-centric framework. The overarching concern is the need to not only ensure openness in the process and promote broader engagement with the Bar, but also put forth a plan that will not be encumbered by the need for either legislative overhaul or judicial review.
Similar to the current process, it is proposed that the collegium draw a list of probable candidates after obtaining individual consent. Each candidate can also be asked to write a one-page statement justifying his or her candidacy. The selected list would then be put to vote among an electorate that is best suited to assess these candidates. Robustness in electoral processes depends on a well-informed electorate — in this case, the electorate must have had some interaction with these candidates and is aware of their competency, abilities, aptitude, etc. The electorate shall consist of two groups:
•All sitting judges in the High Court to the extent of the total strength. (However, if the strength of the High Court is 60 and if there are 45 sitting judges, 15 most recently retired judges would also be called to vote along with the sitting judges.)
•Select senior advocates (either designated or based on seniority) practising in the High Court, and jurists/legal scholars residing in the State. The collegium can make this selection. This bloc will be equal to the total strength of the High Court.
This electorate would cast their votes in favour or against the candidates selected by the collegium in a secret ballot; while abstentions will not be allowed, recusals on account of financial/personal relationships with the candidate will be strictly enforced. A candidate to be selected must obtain at least 50 per cent of the total electorate and of two-thirds of the votes polled. The candidates with maximum votes would have the first preference for selection. The collegium would drop the names of persons who fail to secure the above mandate. These results can be made available to the entire legal community.
Though the collegium remains the pivotal point, this process would ensure that meritorious candidates alone would pass through the system after being vetted by a broad community of judges, lawyers and legal scholars. The possibility of nepotism and undue bias, while still open, will be reduced given that a heterogeneous group of persons from various social, economic and political backgrounds will steer the final selection.
We believe the collegium of a given High Court working together with a panel of local judges and lawyers is the most competent assemblage to select members of the higher judiciary. However, the collegiums must earnestly address the serious concerns for transparency and wider engagement of the bar in the judicial selection process. We hope these proposals will motivate dialogue among all those genuinely concerned for vigour and rigour in the process for appointment of judges.
(Madhri and Anand Gopalan are advocates practising in the Madras High Court.)