Less than three weeks after it struck down a government move to create a constitutional authority to select the nation’s top judges, the Supreme Court on Tuesday identified four areas—including transparency—that it said needed discussion in order to improve the present collegium system of selection.
The collegium, which comprises the Chief Justice of India and four seniormost judges, selects judges to the high courts and the Supreme Court—a system that has drawn criticism for its lack of transparency.
On 16 October a five-judge bench of the Supreme Court struck down the Constitution Amendment Act, which introduced a six-member panel called the National Judicial Appointments Commission. Declaring the earlier system of judicial appointments as revived, the court then asked for responses from various stakeholders on whether the collegium system required improvement.
Justice J.S. Khehar, heading the five-judge bench hearing the case, said improvements to the system had to be within the parameters of earlier practices.
On Tuesday, the court, acknowledging the public discourse, asked lawyers involved in the case to consider four possible areas of improvement: transparency, an eligibility criteria, a secretariat to assist the collegium and dealing with complaints against persons being considered for appointment.
The court said it received many suggestions that were “diverse” in purpose and intent.
Among those who gave inputs was the government, which, however, clarified its suggestions are subject to its “reservation about the correctness of the judgment” of 16 October. In its written note, the government said “to ensure public confidence and credibility”, the collegium system of judicial appointments needed to be “efficient, transparent and accountable”.
The government has suggested a three-step process of appointments, based on justice Madan B. Lokur’s part of the 16 October ruling. The first is judges may be appointed by way of applications or nominations. Further, apex court nominations may be made not just by the collegium, but also other judges of the court, the prime minister, president and the attorney general.
The centre also said the appointment process has to be “truly participatory” and seek inputs from a “committee of eminent citizens”, which would not be restricted to the legal fraternity. All shortlisted applications and nominations should be forwarded to this committee, according to the government.
A member of this panel ought to be a part of the panel that will interview would-be judges in the last stage of the selection, the government suggested. It said the “entire file with all views recorded in writing must be sent to the executive for its views on the antecedents, character, integrity and relevant facets” to determine if the candidate was suitable for the post of a senior judge.
The government supported the need for the collegium to have a “permanent and proper” secretariat that would collect background information and “assess the judicial worth of a particular candidate”.
Senior lawyer Fali S. Nariman told that court that the collegium had to be receptive to suggestions from responsible members of the lawyer community.
The court will hear the case next on 5 November, when there will be a debate on how to introduce the system, and whether collegium discussions need to be kept secret. The court will also hear suggestions on a permanent secretariat, complaint mechanism and eligibility criteria of judges. Lawyer Arvind Datar and additional solicitor general Pinky Anand will collate the suggestions and present them to the court.
On the eligibility criteria, one suggestion was to ensure a regional balance is maintained with adequate representation, including women. A lawyer pointed out that out of 611 appointments, only 62 had been women in recent times. “This system doesn’t remain a collegium system—it’s an alternative system of judicial appointments the government is suggesting,” said M.P. Singh, a constitutional expert and former vice-chancellor of the West Bengal National University of Juridical Sciences.
“If the judiciary follows this, it will need a huge office. Before this, the collegium would take inputs for appointments to the high courts and Supreme Court. That process must be open and have the possibility of relevant people to give suggestions. England has a system of applications and shortlisting, but that will result in a complete change in the collegium system,” he added.
Important points
1. The Supreme Court asked lawyers involved in the case to consider issues of transparency, eligibility criteria, setting up of a secretariat to assist the collegium and dealing with complaints against persons being considered for appointment. The court will hear the case next on 5 November. However, the improvement upon the collegium system had to be within the parameters of the earlier practices in place, after the nine-judge bench verdicts in 1993 and 1998.
2. Attorney general Mukul Rohatgi told the court that appointments of judges could be done either through applications or by way of nominations. He said the government agreed that a permanent functioning secretariat was required to assist the collegium.
3. The collegium, which comprises the chief justice of India and four seniormost judges, select judges for the high courts and the Supreme Court.
