Faizan Mustafa writes | Kiren Rijiju on Supreme Court Collegium: Constitution has the solution to judicial appointments

The executive had primacy in the appointment of judges in the first four decades of our republic. Though most of the judges picked up under this system were independent, upright and fearless, at times the government did succeed in appointing some judges of its choice. It is an open secret that several pliant and submissive judges also made it to the highest court.

Thanks to the Second Judges case (1993), the days of the government having an upper hand in the appointment of judges are believed to be over. However, in many cases, the government conveniently slept over the collegium’s recommendations or cherry-picked names from the recommendations sent by the collegium. In April, the then CJI NV Ramana, defending the collegium system, had said that “there is an impression in India that judges appoint judges”. He said: “It’s a wrong impression and I want to correct it. The appointment is done through a lengthy consultative process, and many stakeholders are consulted. I don’t think that this process can be more democratic than this.”

Justice Ramana may well be right about the lengthy consultative process but the real problem is transparency. Due to the near absence of transparency, accountability too has been a casualty in some of the collegium’s recommendations. Indira Gandhi was widely criticised for twice indulging in the supersession of senior judges and appointing Justice A N Ray, who was junior to three judges, as Chief Justice of India on the day the Kesavananda Bharatijudgment (1973) was delivered. Then, Justice M Hameedullah Beg superseded Justice H R Khanna after the infamous ADM Jabalpurjudgment (1976).

Rijiju is right when he says that not only the common people but even judges themselves feel bad when they see that under the collegium system, supersession seems to have become the rule rather than the exception. The only difference is that it is no more the government but the CJI and four senior-most judges who cherry-pick judges. Their decisions are, at times, as unpredictable as English weather. Several judges have been superseded in the last three decades. Many of the senior-most chief justices of various high courts were not elevated.

The Union law minister’s wish to appoint the “fittest people as judges” is appreciable but how do we determine their so-called “merit”? The Supreme Court collegium’s judges know their colleagues in the high courts, and daily hear appeals against their judgments. They also hear arguments made by advocates of high courts and the SC and are, therefore, in the best position to make fair judgements about their competence and suitability for elevation. That’s why the collegium system looks like a better option.

But one problem with the collegium system has not received much attention, which has damaged the federal character of our judiciary. As a matter of fact, true federalism as per the Constitution was provided only in the judicial system. Our high courts are in no way subordinate to the Supreme Court. Since the appointments to the apex court are now in the hands of its five senior-most judges, the incentive for dissent in the high courts has been lost. The collegium system has created a hierarchy amongst judges, with its members wielding much greater influence than other judges.

Moreover, one feels frustrated to see that in the entire debate on the collegium system, no one wants to look at the Constitution. Article 124 mandates that judges of the Supreme Court shall be appointed by the “President of India” after consultation with “such judges of the Supreme Court and of the High Court in the States as the President may deem necessary” (emphasis added). Thus, the Constitution certainly favours what may be called a “wider deliberative and consultative process” in the appointment of judges. There is great merit in this provision. Wisdom cannot be the monopoly of a few chosen ones in the apex court. Neither the existing collegium system nor the NJAC (2014) that consisted of the CJI, two senior-most judges of the SC, Union law minister and two eminent persons gave any role to high court judges in the appointment of Supreme Court judges. This omission is a violation of an express provision of the Constitution. We do have highly eminent judges in our high courts and their opinion in the appointment of Supreme Court judges must count.

If we recall the parliamentary debates on the NJAC, we would be surprised to see the unanimity of opinion among political parties against the collegium. As a result, the Bill replacing the collegium with the NJAC was unanimously passed in the Lok Sabha and Rajya Sabha. The sole vote against it was of Ram Jethmalani.

One has to appreciate the Modi government for not bringing back the NJAC though, in December 2021, Rijiju told the Lok Sabha that there is a growing demand to bring it back. But then, the government never looked powerless post the NJAC judgment (2016). It has not yet finalised the Memorandum of Procedure (MoP) and it has appeared to successfully block the recommendations of those judges where it had reservations. Lately, there has been a more cordial relationship between the collegium and the government.

Since the government is a party in some 80 per cent of the cases, the collegium seems to be the lesser evil. There is an apprehension that if the government gets an upper hand in judicial appointments, judges may be appointed on petty political or ideological considerations. The government does make almost all the other appointments. Can we really say that all its appointments are made based only on “merit”? Similarly, the judges have not made the fullest use of the collegium system to demonstrate ruthless objectivity and fairness in judicial appointments.

Justice D Y Chandrachud will have a sufficiently long tenure to lead the reforms in judicial appointments. The Constitution favours a participatory and consultative process in judicial appointments. Let us evolve a process in which everyone can repose trust without any reservations. In the appointment of judges of constitutional courts, neither total domination of the government nor its total exclusion would be constitutionally permissible.

The writer is an expert in constitutional law. Views are personal