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SC hears suggestions on collegium: what does it mean for the common man?

Vibhor Jain | Updated on: 13 February 2017, 7:50 IST

The decision

  • The Supreme Court scrapped the proposed National Judicial Appointments Commision on 16 Oct
  • It upheld the two-decades-old collegium system, admitting the need for more transparency and efficiency
  • It is now hearing suggestions on how to tweak the system

The suggestions

  • The Centre has suggested the setting up of a dedicated collegium secretariat at SC and HC levels
  • It has also suggested that HCs recommend candidates six months before any vacancy opens up
  • This would help hasten the process of appointments, which is currently in a shambles

More in the story

  • Where the various parties in the debate stand on issues like eligibility criteria
  • The argument over how much transparency must be introduced into the system
  • Why this debate matters to the common man

On Tuesday, 3 November, the Supreme Court began hearing suggestions on what changes must be made to the system of appointment and transfer of judges in the higher judiciary.

Recently, the court upheld the two-decades-old in-house collegium of judges, scrapping the proposed National Judicial Appointments Commission (NJAC) as 'unconstitutional'. But it also noted the need for more transparency, accountability and efficiency in its workings.

Also read - 'Landmark' or 'unconstitutional': reading the SC verdict on NJAC Act

After hearing a star-studded line-up of top lawyers from both sides of the collegium/NJAC debate, the court decided it would accept detailed suggestions on Thursday on four aspects:

- Transparency

- Eligibility criteria for candidates

- Establishment of a collegium secretariat

- Evolving a mechanism for complaint redressal.

Relevance to the common Indian

The decision to uphold the collegium system was hailed as a 'landmark'. But it remains a landmark only in the realm of legal and political discussion.

The common man is either completely unaware of its significance, or is still attempting to sift through the legalese to find what is in the decision for him/her. The common man's concerns are his daily disputes and troubles, and he wishes to know how the courts can become more approachable for the settlement of these disputes.

This is precisely why the current post-decisional hearings matter more for the actual welfare of this country than the original decision itself.

The problem of efficiency

One of the suggestions made by the Central government - and agreed to by the petitioners - was that the high courts should recommend the names of prospective candidates at least six months before any vacancy.

This assumes importance, because the collegium often failed to fill up vacancies in high courts on time and efficiently. This led to at least one-fourth of positions lying vacant at all times.

Alok Prasanna Kumar, research fellow at the Vidhi Centre for Legal Policy, wrote recently: "Assuming the collegium continued to appoint judges at the same rate, it would take 33 years to fill the current 406 vacancies in the high courts."

This failure to fill up vacancies over several years, Kumar says, has directly led to the high level of pendency per High Court judge, which is several times the pendency of Supreme Court or district court judges.

Citizens want to know how the courts can become more approachable. These hearings will impact that

To tackle this inefficiency, and finally provide institutional support to the collegium, the Centre suggested the establishment of a secretariat in the SC and each HC for researching candidates' credentials.

It said the secretariat should be a full-time body, staffed appropriately, and tasked with publishing vacancies on its website. It should also collect candidate information such as age, number of cases appeared (for candidates from the Bar), number of judgments delivered (for candidates that are existing judges), income level, academic speeches, etc.

This would go miles in improving the current ad hoc system of the collegium, and address the problem of inefficiency, which has received little discussion.

Eligibility criteria

The collegium system suffers from a basic defect, which must be viewed separately from its other problems of inefficiency and opacity.

This basic defect is that clear eligibility criteria have never been laid down - neither for appointment to the higher judiciary, nor within it.

To address this, the Centre suggested criteria like merit, seniority and factors of representation, such gender and region.

Appearing from the other side, senior counsel Gopal Subramaniam improved on this, saying "seniority needs to be respected, but merit cannot be compromised". He was supported by senior counsel Rajeev Dhavan, who said that such a prioritisation was practiced by the Privy Council before independence.

Also read - #NJAC : Let's turn the clock back to pre-collegium days

There remain issues like specialisation in particular areas of law, or differences in quality based on a metropolitan background. Subramaniam said these should be addressed only by testing if the candidate is a quick learner, who can adapt to changes and demands of the profession.

However, the Supreme Court Advocates-on-Record Association (SCAORA), which was the lead petitioner in the main case, made a curious suggestion in its written submission. It sought a certain percentage of appointments in each high court to be earmarked for Advocates-on-Record (AORs).

This does not seem to add up. The role of Advocates-on-Record is to be well-versed with the unique rules of practice and procedure at the Supreme Court. Therefore, there's no exclusive quality they possess that would make them deserving of a high court judgeship.

In fact, AORs exclusively practice at the Supreme Court, and may not be conversant enough with trial advocacy to sit in judgement on matters before high courts, usually the forums for first appeal.

The question of social outlook

While the introduction of eligibility criteria is certainly desirable, there's an additional thing the five judges hearing these suggestions must take into account.

Among the respondents who had defended the NJAC and ended up on the losing side, there was a common refrain - while judges can assess the technical legal skills of a candidate, the candidate's overall social outlook must also be assessed.

Speaking at a panel discussion on Tuesday evening, senior counsel Raju Ramachandran staunchly defended the erstwhile NJAC.

"Had consistency with the Constitution in terms of social outlook and worldview of candidates been a factor in the appointment of judges, we would never have had judgments such as the one on Section 377, criminalising homosexuality," he said.

Ramachandran used this example to justify the presence of 'eminent persons' on the erstwhile NJAC, and said it would be better to start factoring in social outlooks.

The problem with the collegium system is that clear eligibility criteria have never been laid down

Ironically, the court's wariness of these 'eminent persons' was among the reasons for striking down the NJAC.

Another important suggestion by the Centre was to publicly disclose the three-step process explained by Justice Madan Lokur in his judgement on this case. The steps are:

- First, the collegium can make nominations or call for applications of interested candidates.

- Next, there should be a process of consultation involving a committee of eminent persons. The nominations/applications must be forwarded to this committee and its inputs be considered.

- And finally, there should be a closed-door interview of the candidates.

This makes it amply clear that at least one of the judges on the bench still favours the inclusion of 'eminent persons'. These are roughly defined to be non-judges, with distinguished service in their fields and impeccable integrity in public life.

Collegium can still be consultative

Consultation is actually a significant aspect of the suggestions made by both sides on Tuesday.

Dhavan noted that the collegium could not be expanded, as the current bench was bound by the decision of the nine-judge bench which had fixed the current strength in 1998. But the area of consultation could still be expanded to include eminent persons.

The SCAORA suggested the establishment of a consultative body, consisting of judges outside the collegium, distinguished jurists, leading lawyers, presidents of Bar associations and others, to assist the collegium in shortlisting candidates.

From the Centre's side, Attorney General Mukul Rohatgi said there was a need for wider consultation at every step. He suggested that public comments on collegium reforms should be invited on the official Supreme Court website, so that every citizen gets a chance to participate. However, suggestions such as these, as well as the final 'closed door' step of Justice Lokur's process, raise questions about the extent of transparency in the appointment process.

How transparent is too transparent?

Rohatgi said even if the proposed secretariat is flooded with public complaints against the process, transparency can still not be compromised. He went as far as suggesting that the decision-making process should be thrown open under the Right to Information Act.

However, Solicitor General Ranjit Kumar proposed a limit on transparency in case of rejected candidates, so that nobody's reputation gets tarnished.

On the petitioners' side too, Subramaniam supported some level of secrecy, owing to it being "too sacred a process". Senior counsel Anil Divan agreed, saying: "We don't want further criticism of this type."

Eminent jurists warn against expecting any 'real change' or improvement to come out of the process

Divan is apprehensive because there's a limit to which even an average knowledgeable citizen can assess or critique the legal process. Some aspects of it require specialised legal knowledge, and therefore, absolute transparency may result in more emotive, knee-jerk reactions.

It is here that the court must use the legal maxim of "judicial self-discipline" to ensure sufficient transparency. In doing this, it can uphold another legal maxim, that "justice may not only be done, but seen to be done."

Don't expect a real change

At the panel discussion, revered jurist Upendra Baxi and Ramachandran were at opposing ends of the debate. However, both warned against expecting any 'real change' or improvement to come about.

The reason, to some extent, is that these hearings will operate within limits prescribed by constitutional law. Sure enough, the hearing on Tuesday commenced with presiding Justice Jagdish Singh Khehar declaring there "can't be any wholesale changes" to the collegium system. One truly hopes the court strives to do actual reform here. That way, the appointment of judges can be brought down from the esoteric plane it's currently on, into the real world.

After all, reforms in the quantity of judges and the quality of their judgements can actually improve the lives of the citizens of India.

First published: 5 November 2015, 12:26 IST