Last Friday, the Indian Supreme Court sent a clear message that it would be the judiciary, not politicians nor civil society, that would have the final say in selecting judges for the SC and high courts.
It was a bold opinion. Many observers had expected the court to read down the constitutional amendment and accompanying act that created the National Judicial Appointments Commission (NJAC). The NJAC was to be composed of three SC judges, the law minister, and two eminent persons. These observers (myself included) thought the court might give the judges the ultimate say on the NJAC, but ultimately keep the commission intact. Instead, the court found the constitutional amendment that created the NJAC undercut judicial independence and so, the basic structure of the Constitution. The judiciary needed to be supreme in the selection process and having only half the votes in the NJAC for judges was not enough. It had to go.
In its place, they announced the old collegium system would be restored. Under this system, it is the chief justice of India (CJI) and a handful of senior judges who have the final word in appointments. For years, there had been both quiet and loud rumblings about the failings of the collegium system. It was opaque. It relied on unaccountable judges selecting their successors. Some criticised the process for overlooking high-quality candidates and appointing those of lesser merit. The system seemed to lend itself to both personal and professional incestuousness.
To be fair, the collegium system, which had been created by the court in a series of earlier judgments, was a reaction to what many thought was excessive political interference in the appointments process in the 1970s and 1980s. The logic went that judges had to select their own, or face becoming puppets of the political executive.
But many believed it was time to move on. The constitutional amendment that created the NJAC was passed with broad support from the BJP, the Congress and other parties in the summer of 2014. It was claimed that there was not the same reason to worry about overt political manipulation. The NJAC had its safeguards. It was a different country.
On Friday, the judges disagreed. And events of the last year may have validated their view. The court has found many allies for their judgment. The Congress party, many members of civil society and others, concerned that the BJP-led government is politicising independent institutions or dangerously intimidating dissenters, suddenly see new merit in a self-selecting judiciary. The process may have its flaws, but at least the judiciary won’t be beholden to the prime minister.
It would be wrong though to let this moment pass without any improvement to the collegium system. Even the judges writing the decision opined that the collegium is far from perfect. In rendering their decision, the court invited the government and others to make recommendations about how to improve the system at a hearing set for early next month.
What would an improved collegium look like? The majority’s opinion gives some hint of what the judges might be considering. Writing for the majority, Justice J.S. Khehar suggests “one or more ‘eminent persons’ (perhaps even a committee of ‘eminent persons’) can be assigned an advisory/ consultative role, by allowing them to express their opinion about the nominees under consideration.” The collegium would not be required to follow these eminent persons’ advice, but “be obliged to keep the opinion tendered in mind.”
Having a consultative body of eminent persons does seem like an improvement, but more is needed — including specifics. For instance, who are these “eminent” persons? One potential avenue is to have them selected by the prime minister, the leader of the opposition and the CJI, as the NJAC had proposed. This committee could also benefit from having a representative from the government to ensure that the government’s view is present from an early stage. At least one non-lawyer perspective could also be useful — even if only to help guarantee that the bench and bar don’t become too comfortable in a narrow view of what makes a good judge.
Such an advisory committee would need independent staff. After all, even an “eminent person” is in no position to sort through the details of dozens of potential candidates on their own. The committee should be allowed to propose names for consideration as well as scrutinise those put forward by the collegium. When a candidate is finally nominated, the public should be allowed to comment on the candidate to help weed out persons who may have previously unknown failings.
There is no perfect system for choosing judges and no magic criteria to make the selection process scientifically precise. Reasonable people can disagree about which candidate might make the best judge. That said, those nominating judges should be able to defend their choices and those who are nominated should be able to withstand public examination. This is not a high bar for a selection process. Such reforms will not fundamentally transform how appointments are done. For better or worse, judges will still be in control. However, these reforms could improve the process.
The writer is a research fellow at the Centre for the Legal Profession at Harvard Law School.
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