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Journalism of Courage
Why now?
After meeting on Thursday (March 20) evening, the Supreme Court collegium unanimously decided to transfer Delhi High Court judge Justice Yashwant Varma back to the Allahabad High Court, where he originally came from. This came after a large sum of cash was allegedly recovered from Justice Varma’s residence after a fire.
It is the system by which judges of the higher judiciary in India — the Supreme Court and High Courts — are appointed and transferred. Although not rooted in the Constitution or any specific law promulgated by Parliament, it has evolved over the years through judgments of the apex court popularly known as the the “Judges Cases”.
The Supreme Court collegium is a five-member body headed by the incumbent Chief Justice of India (CJI), and comprising the four other seniormost judges at that time.
High Court collegiums are led by the incumbent Chief Justice and the two other seniormost judges of that court.
By its very nature, the composition of the collegium keeps changing, and its members serve only for the time they occupy their positions of seniority on the Bench before they retire.
The SC collegium recommends the names of judges to be appointed to the apex court. So do HC collegiums (for their respective High Courts), although their recommendations must be approved by the SC collegium.
These recommendations reach the government, whose role in the process is limited to conducting an Intelligence Bureau (IB) inquiry into the persons recommended. While the government can raise objections and seek clarifications regarding the collegium’s choices, it is bound under Constitution Bench judgments to approve the names if the collegium reiterates the same.
Why has the system been criticised?
Critics have pointed out that the system is non-transparent, since it does not involve any official mechanism or secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria, or even the selection procedure.
There is no public knowledge of how and when a collegium meets, and how it takes its decisions as there are no official minutes of collegium proceedings. Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.
This has long been an issue of contention between the judiciary and the government.
Have any alternatives been suggested?
The Justice M N Venkatachaliah Commission, appointed by Prime Minister Atal Bihari Vajpayee in 2000, recommended the creation of a National Judicial Appointments Commission (NJAC) to replace the collegium. This would comprise the CJI and the two seniormost SC judges, the Union Law Minister, and an eminent person to be chosen by the President in consultation with the CJI.
While the Narendra Modi government quickly cleared the NJAC Bill in Lok Sabha in 2014, it was struck down by the SC within a year as unconstitutional. “There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary,” the SC said in its majority opinion.
