Everyone in the legal fraternity is weighing in on whether the recent Supreme Court judgment on the National Judicial Appointments Commission (NJAC) drew a sound conclusion. This debate will continue for some time. Indeed, the Court’s rejection of even the constitutional amendment containing the idea of an NJAC was unexpected. This piece does not focus on the judgment, but looks forward to the next hearing where the Court has invited suggestions to improve the collegium system of appointing judges (which it upheld).
Faults of the collegium
Ajit Prakash Shah Recognising these failings is a welcome introspective measure. The object of revisiting the collegium should be single-minded: to remove patronage from the system, and to ensure that judges are appointed according to rational and objective criteria, and nothing else.
Most urgently, the criteria for selecting judges must be delineated. Considerations for appointment to the higher judiciary are numerous, and go beyond the minimum criteria prescribed in the Constitution. These must be pre-determined, instead of the process presently followed, where selections (or rejections) depend on the principle of “you show me the person, I will show you the rule”. Appointments cannot be left to the whims and fancies of the collegium of the day.
Publishing clear selection rules and guidelines also entails abandoning the unwritten informal rules that presently hold sway. Under the informal “seniority” norm, in place since 1993, High Court Chief Justices are routinely elevated to the Supreme Court on the basis of seniority, rather than on merit or other objective qualifications, leading to mediocrity and a decline in judicial standards. Another unwritten rule — the minimum age for appointments to High Courts (45 years), and the Supreme Court (55 years) — has perpetuated the misconception that age and maturity are necessarily tied together. The Law Commission of India’s 14th Report (1958) on judicial reforms observed that young judges would bring a freshness and vigour to constitutional courts. The appointment of older judges, particularly in the Supreme Court, comes with shorter tenures, which threatens the Court with institutional incoherence and consequent ineffectiveness.
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Instead, the collegium could fix a “zone of consideration” while shortlisting candidates for elevation, for example, by considering the senior most five judges in High Courts. This “zone” should also apply for elevating service and district judges to High Courts. The notion of a legitimate expectation of a judicial career has no place in appointments to superior courts. Instead, merit should be the main criteria for selection, which will change the incentives for judges, and directly impact the quality, speed and efficacy of adjudication.
A consultative body suggested by Justice Khehar would be useful, which could include distinguished jurists, leading lawyers, or judges outside the collegium, to assist the collegium in scrutinising potential candidates.
“ The collegium could fix a “zone of consideration” while shortlisting candidates for elevation. ”
The collegium must become fair, transparent and open, to counter allegations of opaqueness and lack of accountability. When a vacancy arises, the collegium must, in collaboration with the consultative body, shortlist candidates for interview. (Inviting applications for important constitutional positions is not an appropriate method of selection.) Guidelines must be laid down for consultation, acceptance of nominations, and the mechanism for shortlisting. The collegium must conduct interviews with the solitary objective of searching for the most meritorious and outstanding candidate. Provisional selections should be published to enable any material or adverse information to surface. Strict timelines must accompany the entire process from shortlisting to recommendation.
Other measures, such as making the collegium’s deliberations publicly available; and annual reporting of vacancies, appointments, number of candidates interviewed, time taken for appointments, and so on, are also important. This requires data management skills and administrative and logistical capacity, for which a secretariat could be established, to ensure that the appointments calendar and processes are strictly followed, and records are maintained and placed in the public domain in timely fashion.
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Two other issues are important. First, the different retirement ages of judges in High Courts (62 years) and the Supreme Court (65 years) encourages sycophancy and unhealthy competition amongst prospective appointees. It must be removed, and brought at par (ideally, this may go up to 70). Second, many judges receive post-retirement appointments from the government (the largest litigant), thus incentivising sitting judges to curry favour with the government of the day. A 2-3 year cooling off period must be introduced, to ensure that judges are not independent only in fact, but are also seen as being independent of the executive. Ideally, such post-retirement appointments, say to a Tribunal or to a Commission, should be made by a panel specially constituted for this purpose.
The NJAC judgment is important not merely because it retains the collegium, but because it recognises its present failings. Its true worth will be tested only when the Supreme Court implements the urgent reform that is needed, absent which existing problems will get further, and perhaps irreversibly, entrenched.
(Ajit Prakash Shah is former Chief Justice, Delhi High Court, and Former Chairman, Law Commission of India.)
