Debates on the collegium system generally start at the wrong place, namely, whether a national judicial commission will be a better alternative. The point at which they ought to start is whether the creation of such a system is constitutionally permissible. Article 124 of the Constitution states that every judge of the Supreme Court shall be appointed by the president in consultation with such of the judges of the Supreme Court, and of the high courts in the states, as the president may deem necessary. It also says that in the case of appointment of a judge other than the chief justice, the chief justice of India (CJI) shall always be consulted.
In the name of the independence of the judiciary, the Supreme Court said in 1993 that primacy in the matter of judicial appointments must lie in the final opinion of the CJI, “unless for very good reasons known to the executive and disclosed to the chief justice of India, that appointment is not considered to be suitable”. To mitigate the violence done to the
plain language of the Constitution and to reassure every one that power did not rest in one individual alone, that is, the CJI, the court created a new constitutional institution, a collegium of the senior-most judges.
This was not a creative interpretation of the Constitution, as the apologists for the collegium system would have us believe, but a plain rewrite. This was judicial overreach and it was only last year, 20 years later, that serious attempts began to repair the damage to the Constitution.
Having stated my fundamental objection, I will recapitulate my three other objections. First, there must be an element of democratic accountability in the matter of appointments to the higher judiciary, which has the power to strike down laws of Parliament and state legislatures, and even amendments to the Constitution. Second, when judges appoint judges, they look mainly at “technical competence” and seniority. They do not necessarily look at the social philosophies or gender sensitivities of prospective candidates. Third, judges do not pay particular attention to the idea of manpower planning, as is clear from the many short-term appointments of chief justices and short-term appointments to the Supreme Court. In a judge-dominated system, everyone needs to be given a “chance”.
And so, it is about time that we put a better system in place. There is no going back now to the original system of the executive appointing judges in consultation with the judiciary, by invoking the doctrine of “original intent”. Much has changed in the world since we enacted the Constitution. Processes of judicial appointments are far more participatory all over the world. Stakeholders in the justice delivery system are now accorded an important role. Let us look at just two examples.
In Canada, the advisory committee for judicial appointments includes a member of parliament from each recognised continued…