Critics of the collegium system often point out that in no other country does the judiciary appoint judges. While the collegium is comprised of the senior judiciary, the Government’s views are taken into account. There have been instances when the collegium has withdrawn its recommendations after consideration of the views of the Government.
The criticism also misses the point that on many occasions the collegium has conditions in India are very different. In which other jurisdiction held out as an example, is the Government the largest litigant? While I have some sympathy for the critics of the collegium system, since greater transparency is certainly required, we cannot possibly countenance a situation where the largest litigant appoints or controls the appointment of the judiciary.
Consider for example the American system. Supreme Court justices there are labelled as either Democrat or Republican. And when the Government of the day changes there is talk of “packing the courts”. which is a sad state of affairs. I do believe that the American system has not resulted in a constitutional crisis only because unlike in India, there is no retirement age and are there for life. This has led to absurd issues such as judges refusing to retire to prevent Congress from nominating a judge of the opposing ideology. We cannot have such a situation where one of the pillars of our constitution is controlled by the other. Those who are in favour of more Government involvement and even control over the judiciary must consider what could happen if heavens forbid an undesirable party comes to power at the centre.
The writer is a Senior Counsel recognised for his expertise in commercial laws, white collar crime matters and arbitrations.