Supreme Court Debate Over Collegium System
Though the Collegium System was instituted in the Third Judges Case (1998) to ensure the separation of powers between the executive and judiciary and to maintain independence of the judiciary, some recent decisions taken by the Supreme Court has highlighted the flaws of collegium system. The first incidence relates to the reconsideration of Uttarakhand Chief Justice for elevation, while the second pertains to the decision of the collegium to replace two High Court chief justices selected for elevation.
Issues with Collegium System
- It envisages selection of judges to Supreme Court and High Court on the basis of seniority instead of merit and individual jurisprudence.
- The selection process of a candidate is highly opaque and not open to debate
- The apparent delay in selection process has led to increased vacancies in the courts, thereby delaying justice delivery systems.
- Independence from the executive in selection process has led to complete breakdown of inter institutional system and failure of checks and balances as thought of in Indian Constitution
- Collegium systems smacks of red-tapism, favouritism and nepotism
- The apparent flaw with collegium system can be ascertained from the fact that India is the only democratic country in the world where the judiciary chooses its own judges. Examples like Justice Karnan openly challenging the decisions of the Supreme Court and committing contempt of court shows the inherent flaws with the judiciary’s collegium system. Recently the government of India in order to ensure transparency in working of judiciary tried to bring out the National Judicial Appointments Commission(NJAC) through 99th Constitutional Amendment. However this was struck down by the Supreme Court quoting threat to judicial independence. This logic is both flawed and short sighted.
Composition of NJAC
- The Chief Justice of India (Chairperson)
- Two senior most judges next to in line to Chief Justice of India
- The Union Minister of law and Justice
- Two eminent persons (to be nominated by the committee consisting of CJI, Prime Minister of India and the Leader of the Opposition in the Lok Sabha)
Way Forward
Steps to make the appointment process transparent:
- Reopen the debate on the National Judicial Appointments Commission (NJAC), thereby ensuring equal participation of executive and judiciary in the selection process
- Codification of criteria for the selection of future judicial candidates
- Voluntary disclosure in public domain on reasons for selection of each candidate.
- Periodically updated database of potential candidates made accessible to public
- Invite applications to judicial openings in consultation with members of the bar and Bar organizations.
The irony of Indian Judiciary is that, the judges who represent the embodiments of Indian democracy are themselves selected through an undemocratic process. Even the National Commission to review the working of the Constitution (NCRWR) headed by former Chief Justice of India Mr. Justice Venkatachaliah advised the constitution of National Judicial Commission. Hence to retain the collegium system in light of increased backlog of cases and debate about opaqueness and non-accountability claiming institutional autonomy and separation of powers is farce and also not in public interest.
