Supreme Court of India: Understanding the future of the collegium system

• The Supreme Court  File Photo

The Supreme Court’s decision to invite public opinion on improving the collegium system is a remarkable departure for an institution that has insulated judicial appointments from public scrutiny. Among the primary criticisms of the collegium was that it was functioning like a clique, without accountability or transparency — and in that process — fostering mediocrity. In this context, the move to invite suggestions for collegium reform raises hopes that the criticisms levelled against the collegium system will now be addressed. However, it appears that the consultation was an afterthought. Lawyers reportedly objected to limiting the discussion to a select group of senior advocates and stakeholders whose views were collated into a report for the collegium to consider. Now that the collegium is bound to receive hundreds of suggestions and a diversity of opinion, the moot question is how effectively the five-judge bench hearing the matter, would be able to revamp the collegium.

The report, already with the collegiums, has made 60 suggestions like caste-based reservation, appointing more women judges, throwing open the minutes of collegium meetings to RTI Act requests, disclosing the relationship of candidates with sitting judges, and whether candidates have held membership of political parties. The central government, in its suggestions, demanded that judicial appointments should be a “consultative participatory exercise” . It also wants publication of an annual report on the appointments made by the collegium. It has also suggested that the collegium proceedings be transferred to the National Archives of India after a 30-year cooling period for use by scholars. For the Centre, which until a month ago, had aggressively batted for the National Judicial Appointments Commission and disputed the judiciary’s power to select judges, the decision to cooperate reflects its own confusion over how to proceed.

The Constitution clearly does not delegate to judges the authority to decide the appointments process for judges. Perhaps, the Centre could even have offered to enact a fresh legislation giving constitutional status to the collegium and the appointments process that this Bench will finalise. The Justice JS Khehar-led bench has already said that four specific issues — transparency, the eligibility criteria for appointments, creating a secretariat to assist the Collegium, and a complaint redressal mechanism — would be addressed in the course of its hearings. The Bench has also clarified that it will “not be laying down new parameters” on collegium functioning, which indicates that the “judges appointing judges” scheme will remain largely unaffected. So the decision to invite opinions may not hold any more significance other than symbolic value.

What the Bench is considering is a purely administrative reform of the collegium system. In essence, the collegium may have to state their reasons for appointing judges. But unless the new system can help rectify complaints of under-representation of women and backward sections, or the rejection of meritorious candidates, little good will come of it. The issue of conflict of interest also arises. There are practical difficulties in opening the collegium to public scrutiny leading judges to prefer secrecy to openness. Consequently, Parliament cannot remain a mute spectator. Once the collegium takes final shape, the central government must initiate a discussion in Parliament on its pros and cons. The collegium is far too important a body to function as an ad hoc body, guided through conventions arrived at by a group of five men.