The fiasco over former Solicitor General Gopal Subramanium’s appointment and later withdrawal of his consent for the Supreme Court judgeship has once again revived the debate over the collegium system that at present governs the appointment of judges in the country.
The collegium system is the one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges.
While there have been murmurs of dissatisfaction over the practice in different quarters, the present Chief Justice of India, RM Lodha, is for continuation of the system but with wider consultation with people outside collegium and “without tinkering” with the memorandum of procedure prescribed by the government in the appointment process.
However, legal experts are unanimous in blaming the present collegium system for the Subramanium mess, saying the crucial exercise cannot be left entirely either to the whims of members of the judiciary or the government.
Keeping the system of appointment of judges within the four walls of collegium has given rise to a lot of criticism like “uncle-and-son-syndrome” which exemplifies the ‘misalignment’ between the core values of judicial independence and accountability.
Though top jurists vouched for Subramanium’s integrity and competence, it is not the first time that a collegium recommendation has been returned. Even in the past, names for appointment as judges, including that of Justice PD Dinakaran in 2009, were returned by the government in the wake of unfavourable reports by the Intelligence Bureau.
Pointing to systemic errors against the collegium system, the legal fraternity feels that any selection system, including the one for appointing judges in the high courts and the apex court that excludes the one branch of government, completely runs counter to the basic democratic principle of institutional checks and balances. The question as to why it is exclusively left to judiciary to appoint judges has been bothering not just the top echelons of judiciary but the executive too, as the collegium system of judges’ appointment has outlived its utility. Even the process has never been foolproof as the judges decide their own appointments through a collegium of senior judges. Few dub it as “a total failure” when it comes to inducting judges of quality.
While the Parliamentary Standing Committee on Law and Justice, which vetted the government’s Judicial Appointments Commission (JAC) proposal, said that the present process adopted by the collegium of judges is beset with its own problem of opacity