Editorial 1: The Collegium and changes – it may still be early day
Reforming the Collegium System – A Step Towards Transparent Judicial Appointments
Context
The collegium system for judicial appointments in India has long been a subject of intense debate. Any meaningful reform in this system can only materialize if the government ceases to obstruct proposals based on arbitrary and often undisclosed grounds. While recent changes initiated by the Supreme Court Collegium hint at progress, systemic challenges persist, threatening the potential for transformative reform.
Recent Developments in the Collegium System
Two significant developments have emerged regarding the collegium’s functioning. According to media reports:
- Candidate Interviews: The Collegium plans to conduct interviews of nominees recommended for elevation as judges to High Courts.
- Exclusion of Relatives: Efforts are being made to exclude candidates whose close relatives currently serve or have served as judges in the higher judiciary, fostering diversity on the Bench.
While these steps appear progressive, their real impact remains to be seen. Both measures reflect a conscious effort to address long-standing concerns about transparency and nepotism in judicial appointments. However, the absence of formal rules governing these changes raises questions about their sustainability.
Persistent Challenges in Collegium Reforms
Despite recent steps, deeper structural issues undermine the collegium’s effectiveness:
- Opaque Processes: The collegium system operates without binding rules, leading to inconsistencies and a lack of accountability.
- Government Interference: Proposals are often stalled or rejected without explanation, compromising judicial independence.
- Ad Hoc Functioning: The absence of codified procedures leaves scope for discretionary decision-making.
Historical and Constitutional Context
The framers of the Constitution envisioned a delicate balance between judicial independence and executive prerogative in judicial appointments. Articles 124 and 217 of the Constitution empower the President to appoint judges to the Supreme Court and High Courts in consultation with the Chief Justice of India (CJI) and other stakeholders. However, the lack of clarity on the nature and scope of this “consultation” led to judicial interpretation, notably in the Second Judges Case (1993).
Evolution of the Collegium System
- Second Judges Case (1993): Established the collegium system, emphasizing “consultation” as “concurrence” and granting primacy to the judiciary in appointments.
- Fourth Judges Case (2015): Reiterated the judiciary’s independence as integral to the Constitution’s basic structure.
The collegium, comprising the CJI and senior judges, recommends judicial appointments and transfers. While the government may seek reconsideration, it is bound to accept the collegium’s final decision. However, delays and non-compliance by the executive often frustrate this mandate.
Current Implications and Concerns
- Accountability vs. Independence: Reforming the collegium system requires balancing judicial independence with mechanisms for accountability.
- Government’s Role: By withholding appointments or refusing to act on recommendations, the government undermines the judiciary’s primacy, creating a paradox where theoretical primacy is challenged by practical obstructions.
- Rule of Law: The collegium system, despite its flaws, represents adherence to the rule of law. Non-compliance by the government amounts to a breach of constitutional principles.
75th Anniversary of the Constitution: A Time for Reflection
As India marks the 75th anniversary of its Constitution, the inability to institutionalize a transparent process for judicial appointments remains a glaring shortfall. While the framers, led by Dr. B.R. Ambedkar, adopted a “middle course” balancing judicial autonomy and executive oversight, subsequent developments have exposed the need for clearer guidelines.
Recommendations for Reform
- Codified Rules: The collegium’s processes, including interviews and exclusion criteria, should be formalized to ensure consistency and transparency.
- Memorandum of Procedure: The existing procedural manual must be binding, with mechanisms to address breaches.
- Judicial Oversight: The Supreme Court must assert its authority to ensure compliance with collegium resolutions, even if it risks being perceived as confrontational.
- Collaborative Governance: Effective judicial reforms require cooperation between the judiciary and the executive, prioritizing constitutional values over partisan interests.
Conclusion
For the collegium system to fulfill its purpose of safeguarding judicial independence, its rulings must be respected, and its processes institutionalized. The judiciary’s role as a counter-majoritarian institution depends not only on its ability to interpret the law but also on ensuring its enforcement. As Chief Justice Coke aptly stated in 1611, “The king hath no prerogative but that which the law of the land allows him.” This essence of the rule of law must guide all efforts to reform judicial appointments, ensuring justice and fairness in the world’s largest democracy.
