The collective legacy of S.P. Gupta v. President of India (first judge’s case), Supreme Court Advocates on Record Association v. Union of India (second judge’s case) and Special Reference 1 of 1998 (third judge’s case) is that the judiciary retains primacy in all matters of judicial appointment to the higher judiciary. This primacy is evidenced by the fact that the Chief Justice of India (in consultation with the five senior most judges) has the final say in the appointment of judges to the Supreme Court, despite expressed reservations by the government. Such disagreements are not uncommon and was recently witnessed in the elevation of three judges to the Supreme Court (see here and here ) Unsurprisingly, this model of appointment has received criticism for placing disproportionate power in the hands of judges in deciding appointments – a matter that should ostensibly include a more broad based system of soliciting consensus. The collegium system has also been questioned on account of it’s secretive manner of functioning, as its meetings and inner deliberations are rarely known, either to other members of the judiciary or the public at large.
Practitioners before the Supreme Court have raised serious questions about the efficacy of the collegium system, and whether a judge centric model of appointment is constitutionally warranted and justifiable. For instance, Fali S. Nariman in his autobiography candidly characterizes the second judge’s case as “A case I won – But which I would prefer to have lost” (Before Memory Fades, Fali S. Nariman, Chapter 16, p.387 – 406). He explains that the second judge’s case in an attempt to restore the position before the first judge’s case, went far beyond it, and virtually re-wrote Article 124. In doing so, the second judge’s case neglected any institutional measure that could have lent accountability and openness to the envisaged collegium model. He further adds that the third judge’s case by prescribing “effective consultation” did little for remedying the lack of any institutional check, and further entrenched judicial primary in the appointment procedure. Similarly, Raju Ramachandran in a recent book review has pointed out that the opaqueness of the collegium system can be disastrous under an autocratic Chief Justice, giving rise to name mongering by powerful senior judges during the deliberation process.
Former judges of the Supreme Court have also been critical of the collegium model. Justice Ruma Pal has been famously quoted as saying that the collegium system of appointment is “one of the best kept secrets in the country” (see here, here and here). Recently Justice Katju also voiced his concerns over the collegium model and provided an account of the manner in which he made judicial appointments to the Andhra Pradesh High Court, while he served as its Chief Justice. Whether or not the procedure of appointment as advocated by Justice Katju is advisable, or even whether it will gain traction with other Chief Justices, is a matter still to be seen.
Given these varied and consistent concerns, the Supreme Court has begun to respond with some recent decisions. In 2010, a PIL was filed by a Rajasthan based trust that sought a complete review of the collegium model of appointment. A two-judge bench comprising Justice Deepak Verman and Justice Chauhan heard the PIL. The petition was admitted and was subsequently ordered to be placed before the Chief Justice to constitute a bench of appropriate strength. Subsequently, a three judge bench comprising of Chief Justice Kabir issued notice to the concerned parties to aid in the resolution of the matter (see here and here). Unfortunately the petition came to be dismissed on January 8, 2013, on technical grounds. The court held that the petitioner-trust lacked standing to raise the constitutional questions involved in the instant matter (see here and here).
Similarly, in 2010 a two judge bench comprising of Justice Sundershan Reddy and Justice Nijjar referred a series of questions involving the functioning of the collegium to the Chief Justice. The primary question involved in this reference is whether the deliberations of the collegium and file notings of the Chief Justice are subject to a Right to Information application. In making this reference, the judges also note that these issues involve a balancing of several interests: the credibility of the appointment process, the right of judges to speak frankly during deliberations and the right of citizens to be informed about constitutional appointments.
These two cases clearly signal a growing concern that the higher judiciary must confront and hopefully successfully resolve. Considering the realities of the functioning of the political executive and our intuitive suspicion towards its decision making process, it is difficult to foresee the collegium system being completely disbanded. This is supported by the decision of Supreme Court to finally dismiss the petition that sought a complete review of the collegium model. But that response captures only one part of the current debate. The concern over the collegium system does not extend only to the people making judicial appointments, but more so the manner and circumstances in which such appointments are made.
Given this concern, one would be inclined to argue that reforming and fine-tuning the manner in which the collegium operates, is more instructive, as opposed to challenging the collegium model itself – both in terms of a litigation strategy and in terms of addressing the enumerated constitutional concerns. These reforms can be affected through small yet significant institutional arrangement. For instance setting up a permanent office for judicial nominations within the Supreme Court, compiling a publicly available database of recommendations and releasing records of collegium meetings might prove to address some of the perils of the current system. Perhaps for these reasons, it will be worth watching how the court finally determines transparency issues concerning the collegium in respect of the pending PIL.