Debate Rages In India Over Who Should Pick Judges: Government Or Collegium?

Should judges pick their colleagues or the government should have a bigger role in picking judges?

This question has surfaced in India with the federal Law Minister and the Chief Justice going public on the issue.

The judges of the Supreme Court got selected by their colleagues through a system called the collegium. Under the system, the collegium, comprised of the judges of the apex court, recommend names to the government. The law minister forwards the recommendation to the Prime Minister, who advises the President to appoint judges.

But the government wants radical changes in the system and a bigger role for itself. The vice president and the law minister have been vocal on this issue. Law Minister Kiren Rijiju taunted by saying, “Across the globe, judges do not appoint judges. But in India, they do.”

Vice President Jagdeep Dhankar also attacked the system and questioned the Supreme Court judgement that over- ruled the government decision of abrogating the Judicial Service Act.

The Narendra Modi government enacted a law in 2015 enabling the federal government to constitute a federal commission that would include the law minister. This commission would replace the decade-old collegium system.

The apex court said only it could safeguard the rights of the citizen ‘by keeping it absolutely insulated and independent from the other organs of the government.’

India’s higher judiciary has capitulated to the governments and the ruling parties in the past. The government too had put pressure on the judges by superseding, transferring and not confirming them.

On the other hand, there are instances of judges being given plum postings after their retirement.

The collegium system might have taken away the power of the government of intimidation and applying the carrot and stick policy.

However, the collegium has been criticised for being slow and lacking transparency.

The Supreme Court has the recommended strength of 34 judges, but it has only 27 at present. Less number of judges means slower justice. More than 40 million cases are pending in courts at different levels, 70,000 of these in the apex court.

There are reasons for the slow process of the collegium system. It meets too infrequently, it meets only when the chief justice and other four judges of the panel are available. It met only 12 times between 2017 and 2020.

Second, the collegium system does not foresee a vacancy and plans in advance though it is clear that all judges would retire at 65. Seldom a vacancy has been filled immediately after the retirement of a judge.

The recommendations are sent to the judges in batches of two to four.

The government sits on the recommendations too long. It has also been found that the government has sent back the recommendations after long and on sometimes on frivolous grounds.

On the other hand, instead of trying to improve the condition by co-operating with the collegium, the government asserts that it can seek a reconsideration of the names.

In a written reply to a question posed by Communist Party of India (Marxist) member John Brittas, Rijiju said, in parliament house that there are 18 such cases.

“Government can seek reconsideration of names recommended by the SCC, and as on 31.01.2023 there are a total 18 proposals on which reconsideration of SCC has been sought. SCC decided to reiterate 06 cases, in 07 cases SCC has desired updated inputs from the High Court Collegiums, and 05 cases have been decided to be remitted by the SCC to the High Courts.”

In a veiled attack, the Law Minister, in response to another question said that various High Court collegiums were in ‘breach’ of the six-month timeline to send advance recommendations to fill upcoming judicial vacancies.

Elaborating his point of view, Rijiju said that the government has yet to receive recommendations for appointment of 236 vacancies-191 for present and 45 anticipated vacancies during the next six months.

Explaining the delay and claiming that the government was doing its best to clear the backlog as soon as possible, he told the upper house that a total of 142 proposals recommended by the High Court Collegiums were at “various stages of processing”.

He also said that four recommendations were pending with the Supreme Court Collegium and 138 were under various stages of processing within the government.

The collegium system has also come under scathing attack for alleged lack of transparency, nepotism and ignoring people from marginalised segments of the society.

The High Court and the Supreme Court collegia have been attacked for ignoring people of the SC, ST,OBC and religious minorities.

Replying to a question raised by BJP member Sushil Modi, the Law Minister said that out of 554 High Court judges appointed since 2018, as many as 430 belonged to the general category.

Rijiju also informed that 58 judges were OBCs, 27 were religious minorities, 19 were SCs and six belonged to the ST community. He mentioned that the general category judges accounted for over 77% of all appointments.

As it may appear lopsided, Rijiju explained the reason. He said that constitutional provisions guiding the appointment of judges in the Supreme Court and High Courts do not provide for any specific reservation.

He said, “The government remains committed to social diversity in the appointment of judges in the higher judiciary and has been requesting the Chief Justices of High Courts that while sending proposals for appointment of judges, due consideration be given to suitable candidates belonging to SCs, STs, OBCs, minorities and women to ensure social diversity.”

It is interesting that the present central government, which is on a privatization spree that is effecting reservation system, is taking the plea of reservation against the collegium system.

“Collegium system is better than government appointing judges; but it is non-transparent, non-objective and riddled with nepotism,” said senior lawyer Prashant Bhushan in an online event published by Live Law.