Facts, concerns about the collegium system

Is the collegium system of choosing judges perfect? That’s what former Chief Justice of India, UU Lalit, has claimed in recent interviews. Indeed, he’s even suggested that it’s intrinsic to the basic structure of the Constitution. But is he right on either count? Let me share with you what research reveals.

Let’s take the second issue first. The word collegium doesn’t feature in the Constitution. More importantly, an amendment to add the “concurrence of the Chief Justice” in the appointment procedure was defeated in the Constituent Assembly. However, in 1993, the Supreme Court (SC) did this by deciding that the consultation referred to in Article 124 (2) actually means concurrence, disregarding the fact every dictionary has different meanings for the two words.

So, it’s hard to believe the collegium system is intrinsic to the basic structure when it’s not even part of the Constitution. Instead, it seems to have been inspired from what Humpty Dumpty said, “When I use a word it means just what I choose it to mean”.

Let’s now come to the question of perfection. Justice J Chelameswar, in the 2015 National Judicial Appointments Commission case, said: “...proceedings of the Collegium were absolutely opaque and inaccessible both to the public and history”. Justice Kurian Joseph agreed: “Collegium system lacks transparency, accountability and objectivity”. So, clearly, some former judges of the SC do not believe it’s perfect.

Here are some of the reasons why. First, we don’t know the criteria by which judges are considered nor the basis on which they are chosen. Second, since the collegium system operates behind closed doors, there’s ample scope for nepotism. Not surprisingly, there have been allegations that some judges have appointed their chamber juniors and, even, their relatives.

A bigger concern is the quality of judges selected by the collegium. For a start, the best are often ignored. Two examples are justice Ajit Prakash Shah and justice Akil Kureshi. In Kureshi’s case, justice Rohinton Nariman refused to nominate any other person until he was appointed, but that never happened.

Even worse, inappropriate people are often chosen. The most glaring example is justice CS Karnan, who ended up in jail. Some others invite controversies, such as justice Arun Mishra and justice MR Shah who embarrassed the SC when, as sitting judges, they publicly praised the prime minister (PM).

Now, can a system with these infirmities be perfect? Not in the eyes of former Chief Justice JS Verma who, in 1993, wrote the judgment that created the collegium system. In an interview to me for the BBC’s HARDtalk India in 2004, he said he had changed his opinion and now believed a National Judicial Commission, which gives a role to the executive, is a better way of appointing judges. So, if the person who authored the verdict has changed his mind, can the system be perfect?

Justice Verma argued that while judges are best placed to assess the judicial acumen of candidates, the executive is better equipped to assess their character and integrity. This is why it must have a role.

However, he went one step further. In 1997, when he was Chief Justice, the collegium recommended a name about whom then PM IK Gujral told him that the intelligence agencies had serious reservations. Verma withdrew the name and informed five of his fellow judges why he had done so. Three of them went on to become Chief Justice and one of them disregarded what they’d been told and re-nominated this person, thus ensuring he became a Chief Justice. For Verma, this was proof the collegium can nominate the wrong sort of person. And this was not a solitary example, he added.

Let me stop at this point. I’ve laid out the facts and concerns that simple research has revealed. No doubt there’s a lot more, but not being a lawyer or a judge, I’m not aware of it. Yet, surely, this is enough to justify asking the two questions I began with? Is the collegium system perfect? Can it be considered intrinsic to the basic structure of our Constitution?

IS THE COLLEGIUM SYSTEM OF CHOOSING JUDGES PERFECT? CAN IT BE CONSIDERED INTRINSIC TO THE BASIC STRUCTURE OF OUR CONSTITUTION? HERE’S WHAT SIMPLE RESEARCH HAS REVEALED.

Karan Thapar is the author of Devil’s Advocate: The Untold Story

The views expressed are personal