- Seema Sapra
The ongoing debate about how Judges should be selected in India must start by asking how has the Indian Judiciary performed in the last three decades, i.e., during the period that the Collegium system of Judges appointing Judges has prevailed. It must ask if the Collegium system has selected good Judges. It must question what ails the Indian Judiciary, and why are Indian citizens, the consumers of the justice delivery system so unsatisfied with it.
The ongoing debate about the Collegium system must also start with an objective description and critical analysis grounded in facts and data of how the Collegium system has actually worked rather than simply mouthing doctrines like separation of powers, judicial independence, and basic structure in defence of the Collegium system. How far do these doctrines justify the Collegium system? Has the Collegium system actually resulted in greater judicial independence? How has it affected the governance principle of separation of powers under the Constitution of India? And how has the Collegium system contributed to the preservation of the basic structure of the Constitution of India. Or does the Collegium system damage the basic structure of the Constitution of India. Has the Collegium system resulted in harm to the independence and accountability of the Judiciary. Has the Collegium system resulted in Judges grabbing the power and authority which must properly lie elsewhere, thereby violating the constitutional principle of separation of powers.
Far from protecting judicial independence, the Supreme Court created Collegium system of Judges appointing Judges in fact has made the High Courts and High Court Judges subservient to the Supreme Court and has harmed judicial independence. This point was also recently made by a retired Judge of the Delhi High Court, Justice Sodhi.
The Collegium system of Judges appointing Judges has also made the legal Bar or the lawyer community subservient to Judges or the Bench, thereby again harming Judicial independence as a strong Bar is essential to hold Judges accountable. The Collegium system of Judges appointing Judges has emasculated the lawyer community or the legal Bar, at least in the Supreme Court and the Delhi High Court.
Under the Collegium system of Judges appointing Judges, Chief Justices of the High Courts & the Supreme Court often appoint lower judicial officers as Court Registry Officers & subsequently promote them as High Court Judges. The lower judiciary officer picked up to be say the Registrar General of a High Court, is beholden to the Chief Justice of the High Court, reports to him, is amenable to pressure, & eager to please the Judges and especially the Collegium Judges in hopes of an offer of a High Court Judgeship. The Court Registrar's Office gets calls from High Court Judges not just for official work but also for personal work and requests. Such a situation is very unhealthy and creates the possibility of abuse. Such Registry officials can be influenced to act unethically or for extraneous reasons. Such Court Registrars hoping to please Judges who could recommend them for Judgeship are not able to perform their duties professionally and without undue influence. In this manner, the Collegium system of Judges appointing Judges also harms the independence of Court Registries and of Registry Officials.
The Collegium system of Judges appointing Judges has resulted in widespread nepotism in Judicial appointments, where across generations, close relatives of Judges get appointed as Judges overlooking several much more suitable and qualified candidates who are not even being considered. None of the prominent lawyers, ex-Judges, politicians who have spoken up in support of the Collegium system have addressed the elephant in the room- the charge of nepotism in judicial appointments where far too many children & relatives of former Judges are selected to be Judges. Nepotism in judicial appointments by the Collegium is nothing but a form of judicial corruption, which must be called out to save our justice delivery systems.
Under the Collegium system of Judges appointing Judges, basic rules like conflict of interest are being flouted. Judge B who was appointed as Judge by Judge A, goes on to appoint Judge A's son C as a Judge. Such actions are in clear violation of the conflict of interest rule.
The Collegium system of Judges appointing Judges flouts basic rules like conflict of interest. Judge X appoints Y as Judge, knowing fully well that children & close relatives of Judge X will appear as lawyers before Judge Y. This violates the conflict of interest rule.
The Collegium system of Judges appointing Judges is directly responsible for a large increase in judicial corruption.
Some Questions, Propositions, and Problems
The functioning of the Collegium, its decision-making process is completely opaque and non-transparent. It is a black box which suddenly comes up with a name for appointment as a High Court or a Supreme Court Judge and expects that its decision must be respected and obeyed by the Government and by everyone else. The only output that the Collegium makes available is a resolution stating that a person be appointed as a Judge.
There are no written rules setting out how the Collegium functions, or the criteria used to shortlist candidates or select Judges, or the procedure followed by the Collegium to consider, scrutinise and assess a person as a candidate for a Judgeship. .
The Collegium claims to keep no minutes of its meetings, no written record of its functioning or of its deliberations and keeps no written record of reasons for selection or rejection of a name to be appointed as a Judge.
The Collegium claims that its records are not covered by the Right to Information Act, are not public, and can not be shared with anyone.
The Collegium system of Judges appointing Judges is not subject to judicial review. The closed, secret, opaque, untransparent system of the Collegium appointing Judges is unaccountable. There is no mechanism for review of or appeal from a Collegium resolution by a body external to the Collegium. According to the Supreme Court, the decision of its Collegium of Judges to appoint a Supreme Court or a High Court Judge is final and binding even on the Government of India.
The present Chief Justice of India Mr D Y Chandrachud joined the Supreme Court Collegium on 24 April 2021 and will remain with it till 10 November 2024. This is a very long and influential Collegium tenure of over 3.5 years. During his tenure with the Collegium, Justice D Y Chandrachud will have been responsible (albeit with other Collegium Judges) for selecting almost a complete Full Bench of Supreme Court Judges, for selecting hundreds of High court Judges across the country, for selecting all Chief Justices of all High Courts, and for scores of transfers of High Court Judges. This long Collegium tenure makes him possibly the most powerful Supreme Court Judge ever. The question to be asked is this - is such concentration of power in a single individual desirable or healthy? That Justice D Y Chandrachud would hold and exercise this immense power was publicly known since 13 May 2016, the date on which he was appointed as a Judge of the Supreme Court of India. It was especially known even prior to that date to the persons and authorities who appointed him to the Supreme Court in May 2016. What are the implications of this and what conclusions can be drawn.
A Bench of Supreme Court Justices Sanjay Kishan Kaul and Abhay Oka are hearing a Contempt Petition filed by a lawyer association against Law Ministry Officials for the alleged failure/ delay on the part of the Government of India to appoint Judges recommended by the Supreme Court Collegium. Justice Sanjay Kishan Kaul is part of the Collegium and Justice Oka will be part of the Collegium in the future. Should these two Judges be hearing this matter therefore. Are they not acting as Judges in their own cause. Is there not a conflict of interest in them hearing this case. This case also creates a unique Constitutional or Unconstitutional moment where the Supreme Court has threatened the Government of India with "unpalatable consequences" in its contempt jurisdiction for the latter's failure to appoint those persons as Judges who the Supreme Court Collegium (comprised of Judges) has selected.
The Collegium has informally created two classes of Judges in each High Court and in the Supreme Court - those Judges who are or will be members of the respective Collegiums and those Judges who will never be part of the Collegium.
The appointment of Justice Victoria Gowri
The recommendation of Justice Victoria Gowri as a Judge of the Madras High Court by the Supreme Court Collegium on 17 January 2023; the subsequent publicity of her problematic previously expressed views on Islam, Christianity, conversions, and on "Love Jihad"; the representations made to the Collegium against her proposed appointment; the filing of two Writ Petitions in the Supreme Court challenging the Collegium Resolution recommending Gowri as a Judge; her appointment as Judge by the Government of India on 6 February 2023 following the Collegium recommendation; the listing of these writ petitions for hearing by Chief Justice Chandrachud on 7 February 2023, the notification by the Madras High Court for the swearing in of Justice Gowri on 7 February 2023; the attempts to get the writ petitions heard before the swearing in; the ultimate hearing of these writ petitions after 10.30 am on 7 February 2023; the swearing in of Justice Gowri in the Madras High Court while these petitions were being heard in the Supreme Court; and the ultimate dismissal of these writ petitions by a Supreme Court Bench of Justice Sanjiv Khanna and Justice Gavai with detailed reasons to follow not only constituted high drama bordering on farce but also in the span of a few days exposed much that is wrong with the judicially created Collegium system of Judges appointing Judges.
First we must assume that the Collegium Judges did their research on Ms Victoria Gowri and knew of her publicly expressed views and also knew that Ms Gowri was a member of Prime Minister Modi's political party, the BJP, and was an office bearer of the BJP. We must assume this because the Collegium Judges and all votaries of the Collegium have maintained that they conduct a very thorough scrutiny of a candidate before recommending her for Judgeship. The Collegium Judges have also maintained that they do their own independent scrutiny of a candidate and the reports from the Government and Intelligence Bureau are supplemental and supportive. We must assume that the Collegium Judges knew these facts about Ms Gowri, because these were facts ascertainable by a simple Google search, by a simple scrutiny of her social media posts, and it is inconceivable that the Collegium does not even engage in this level of basic scrutiny of a potential candidate for the position of a High Court Judge.
If the Collegium claims to be unaware of these facts about Ms Gowri, then this itself exposes a major flaw in the working of the Collegium. The process adopted by the Collegium for scrutinising candidates is therefore flawed. Such a basic flaw in the process adopted for appointing High Court and Supreme Court Judges by a five member group comprised of the 5 senior most Judges in the country (the Collegium), shows that unless these five senior most Judges lack basic common sense, the factors that play a role in the Collegium's selection of Judges are arbitrary, extraneous, and that the decision making process is itself arbitrary and incorrect. Can the Collegium be trusted to select any other person as a Judge if its scrutiny process failed to unearth these basic facts about Ms Gowri.
Or should we assume that the Collegium was aware of these facts about Ms Gowri but reached the conclusion that these revelations about Ms Gowri did not disqualify her to be a Judge on the ground of unsuitability. The Supreme Court's response came in the statement of future Chief Justice of India Mr Gavai made during the hearing - "You have to trust the system".
