Two interesting nuggets of information have emanated in recent days about the functioning of the Supreme Court of India’s Collegium. As is often the case with the body’s processes, reports in the media attribute the news of these decisions to unnamed sources. The collegium, the accounts say, will now conduct interviews of candidates who have been recommended for elevation as judges to the High Courts. The panel will also, to the extent possible, exclude from selection those whose close relatives have served or continue to serve as judges of the High Courts or the Supreme Court.
By themselves, neither of these resolutions might seem especially remarkable. One would think that appointments to important positions in the State — in this case, to the higher judiciary — would require careful consideration, including a meeting by the decision-makers with the nominated candidates.
One would also think that some amount of pruning of nominees is inevitable in any process of selection. Here, the collegium is conscious that a few deserving candidates might miss out in a move to exclude those with kin on the Bench, but it believes, on a balance, that this will help create a more diverse judiciary.
There is still a concern
It is too early to judge the merits of these choices. In time, they may well come to be seen as harbingers of change and reform, but, for now, a familiar concern looms large, threatening to militate against that prospect. Any reform of the collegium system — much needed as it is — will only go so far, if the government is permitted to stonewall proposals, on arbitrary, whimsical and often undisclosed grounds.
At its foundation, the collegium is a product of judge-made law. Thus, it seems to forever stand at a crossroad. It has no formal rules to bind it; it is answerable to nobody; and its functioning — whether it is in the publication of its decisions or in the opacity and the mystique of its methods — is suffused in a certain ad hocism.
Replacing this with a clear set of binding rules is essential to the maintenance of the system’s integrity. For example, we are told that there exists a “memorandum of procedure”. But does a breach of that manual carry with it any consequences? Will the interviewing of candidates be written into those set of rules? Who is to say how the collegium under future Chief Justices of India (CJI) will function?
In recent weeks, as we have marked the 75th anniversary of the Constitution’s adoption, we have seen many a paean sung to the document’s text and vision. Its survival has enlivened our commitment to equality and social justice. But that we have been unable to determine quite how best to appoint our judges is an enduring blemish.
The Constitution’s framers debated the question over many days. They were mindful of the foundational ideas underlying the republic: that the legislature, the executive and the judiciary must remain separate. But striking a balance and ensuring that the sovereign function of making judicial appointments would not come in the way of ensuring the autonomy of the courts was always going to be a sticky issue.
The ‘middle course’ it was
All manners of suggestions were made in the Constituent Assembly. But the drafters, in the Assembly’s chairperson Dr. B.R. Ambedkar’s words, chose to go down a “middle course”. To that end, the Constitution provides that judges to the Supreme Court are to be appointed by the President of India in consultation with the CJI and such other judges that he or she deems fit. Judges to the High Courts are to be appointed by the President in consultation with the CJI, the Governor of the State and the Chief Justice of that court. In the case of transfers, the President may move a judge from one High Court to another, but only after consulting the CJI.
These stipulations are by themselves clear. But in failing to define what manner of consultation ought to be made, in failing to explicate how transparent this process needs to be, the provisions opened themselves up for judicial consideration.
In 1993, in what is popularly known as the Second Judges Case, the Court held that “consultation” must mean “concurrence”. And concurrence not only from the CJI, but from a “collegium” of judges. In the process, the Court fashioned a whole new procedure that it believed would maintain both a fidelity to the bare text of the Constitution’s words and the chief objective of ensuring an independent and autonomous judiciary
The process has a number of nuts and bolts to it. But, in short, it postulates the following: the recommendation to appoint a new judge to a High Court or to the Supreme Court, to transfer a judge from one High Court to another, and to elect a new Chief Justice to a High Court, would come from the collegium — a body comprising the CJI and his senior colleagues, in some cases, two members, and in others four. The collegium will make this recommendation after taking the views of “consultee” judges. Once this recommendation is made, the Union government can either choose to accept the proposal or return the proposal for reconsideration. Upon reconsideration, if the proposal is submitted anew, the government has no choice but to sanction the resolution.
While this seems simple enough, seeing as the law was laid down by the Court sans any attendant and binding rules, the government has a variety of means available to it to block recommendations it deems inconvenient. It can either keep the proposal pending at its end or, on a re-recommendation, stop short of issuing a presidential warrant authorising the appointment or transfer.
This has led to a curious paradox: in theory, the collegium retains primacy over judicial appointments. But the government’s capacity to forestall any recommendation made means that the question of primacy remains moot, despite the Court having previously spelled out — in the Fourth Judges Case (2015) — that it is the judiciary alone that must retain pre-eminence and that any tinkering with that position would impinge on the Constitution’s basic structure.
The Judges’ cases and rule of law
Whatever our position on the collegium’s constitutional suitability may be, today, the system represents the rule of law. The government is legally obliged to follow the procedure laid down in the Judges’ cases. It enjoys no discretion in the matter. When it sits over recommendations endlessly, and when it resists proposals by simply failing to act, it is effectively stymieing the legal process.
There is no doubt that until such time we manage to find a process that can marry the requirements of accountability with independence, embracing meaningful reforms within the extant process remains critical. The law as it stands must be followed. The collegium’s newest proposals address some of the long-standing concerns over its processes. But at some stage, we must also take seriously the question of implementation.
Until now, while the Court has, on occasion, asked questions of the government when it has failed to follow through on a resolution, it has stopped short of issuing express directions for compliance. Perhaps the Court has felt that orders of this kind might be seen as unnecessarily confrontational. Ultimately, in matters such as these, one would want different wings of the state working together collaboratively to ensure that the procedure stands fulfilled.
But for the collegium system to retain salience, and for it to achieve its purported objective — the maintenance of our judiciary’s independence — the rulings in the Judges’ cases must be accorded due respect. The Court’s ability to function as a counter-majoritarian institution depends as much on its ability to declare the law as it does on its ability to ensure that the law is followed. For, as Chief Justice Coke put it, way back in 1611, summing up the essence of the rule of law, “The king hath no prerogative but what the law of the land allows him.”
Suhrith Parthasarathy is an advocate practising in the Madras High Court
Published – January 07, 2025 12:59 am IST
