New Delhi: One of the primary reasons why many in the bar-and-bench want to reform the judges’ appointment system is because of the regular reports and inputs that they have been receiving from members of the judiciary from across the country detailing how some individuals are being appointed as judges in High Courts for “multiple reasons”.
As a consequence, the Supreme Court is putting out a robust system to ensure that only deserving candidates are either elevated or directly appointed as judges in High Courts, many of whom are then subsequently elevated as judges of the Supreme Court.
The system to appoint judges has become topical after Union Law Minister Kiren Rijiju on 17 October, while speaking at an event, termed the collegium system “opaque” and described the Indian selection system as the only one where judges appoint judges. “The mechanism to appoint judges is opaque,” said the Law Minister.
On Friday, Rijiju, for the third time in two months stated that the collegium system of appointing judges is opaque while defending the now struck-down National Judicial Appointment Commission (NJAC) as the “collective will of the nation”. The Law Minister made these remarks while interacting with a news channel. The NJAC Act, unanimously passed by both Houses of Parliament and ratified by more than half of all the states, was struck down by a Constitution Bench of the apex court as “unconstitutional” in 2015, and the collegium system of appointing judges to High Courts and the Supreme Court was upheld.
Earlier on 17 September, too, Rijiju had raised questions on the system of appointments in the higher judiciary. “There is a need to think about the collegium system so that appointments in the higher judiciary can be accelerated. The system which is in place is causing trouble and everyone knows it. Further discussion will be held about what and how it has to be done,” the Minister said at the inauguration of a conference in Rajasthan.
The inputs that have been shared by former and serving judges with the top offices of India include how a High Court judge increased the compensation, which the state government was required to pay, by three times to those whose land was being acquired by the government for a public project. Later, it emerged that the said judge himself owned large tracts of land in that area and his land too was being acquired for the said project.
According to a sitting judge, ideally, the said judge should have recused himself from hearing the said matter as it amounted to a conflict of interest. The said matter was brought before the Prime Minister’s Office by representations sent by judges of the same High Court. In another instance, two lawyers, who were not even practising in a particular High Court, were recommended by a majority of members of a High Court collegium for appointment as judges. The two lawyers were related to a senior IPS officer and to a top lawyer, who is well-known in Delhi. However, the said appointment could not be carried out as one of the judges of the collegium refused to recommend the same.
Neither the collegium system is mentioned in the Constitution nor does it owe its existence to any specific law promulgated by Parliament; it has evolved through judgements of the Supreme Court. While the Supreme Court collegium is a five-member body, which is headed by the incumbent Chief Justice of India (CJI) and comprises four other senior-most judges of the court at the time, the High Court collegium is led by the incumbent Chief Justice and two other senior-most judges of that court.
Judges of the higher judiciary (Supreme Court and the High Court) are appointed only through the collegium system. The role of the Union government comes only after names have been decided by the collegium. The said names that have been recommended for appointment by a High Court collegium, reach the government only after approval for the same has been given by the CJI and the Supreme Court collegium.
The role of the government in this entire process is limited to getting a discreet inquiry conducted by the Intelligence Bureau (IB), if a lawyer is to be elevated as a judge in a High Court or the Supreme Court. The said inquiry focuses on his or her antecedents, and relationship, if any, with individuals or groups of dubious nature.
However, many times, as two sitting judges shared anecdotes with The Sunday Guardian, despite the IB being involved, individuals may be appointed as judges whose subsequent track record may not always be stellar. Those who are critical of the collegium system have stated that the system is non-transparent, a closed-door affair with no prescribed norms regarding the eligibility criteria and the selection procedure. No information is shared on how a collegium took its decisions. There are no official minutes of collegium proceedings, critics claim. However, in the recent past, a degree of transparency has been brought into some court proceedings through live streaming, and it is anticipated that more such reforms are on the anvil. Much is expected of the present CJI and his successor.