Opinion Judging the court

In January, a sitting judge of the Madras HC publicly expressed his displeasure at the selection of 12 individuals, who had been recommended for appointment by the HC’s collegium. The list of selected individuals had been forwarded to the SC, which had nominated them for appointment to the Union law ministry. Among the allegations levelled against those selected was that the proposed appointments were skewed in favour of lawyers from the upper castes. The SC, notably, withdrew its nomination and returned the list to the Madras HC earlier this month. But its reason for doing so — that the Madras HC had a new chief justice and therefore the list had to be considered afresh — skirts the real problem of lack of accountability in judicial collegiums.

The collegium system — a creation of the SC itself — comprises the chief justice and the senior-most judges of a high court or the SC and is not answerable to any constitutional functionary for its decisions. A judicial appointments commission is in the works, but it is unclear when Parliament will legislate it into existence by way of a constitutional amendment. The proposed commission, which would replace the collegiums, would still have some discretion in the appointment process.

Meanwhile, till the commission is institutionalised, the apex court should nudge the appointments process towards greater transparency. The SC could prescribe eligibility criteria for selection to the higher judiciary, beyond the basic requirements in the Constitution. It could exhort high courts to make the shortlist of candidates public. The SC could disclose why it has chosen to nominate judges from the short list to the Union government.

The appointment process should also take on board diversity concerns. Higher courts will indeed invite criticism upon disclosing the rationale behind judicial appointments but that would arguably be a small price to pay to shore up public confidence in the judiciary while retaining its independence.