For a change, a question on the much-debated “collegium system” of selection of judges was raised by the Supreme Court bench itself. Former Chief Justice of India, Justice N.V. Ramana, recently said that the absence of an institutional mechanism to ensure diversity on the Bench in the judiciary is a problem. “The system which is in place is causing trouble and everyone knows it,” he said while speaking on ‘Cultural Diversity and the Legal Profession’ at a legal summit.
It’s interesting to note that during his tenure as the Chief Justice, Ramana got ample opportunity, at least theoretically, to address the lack of diversity in the appointment of judges. The Supreme Court collegium appointed 11 Supreme Court judges during his tenure as CJI. At the same time, the collegium made 242 recommendations for the appointment of the High Court judges, out of whom 240 were appointed.
I have gathered information on the social background of the appointed judges from the Supreme Court and high courts. There is empirical data to prove that the collegium headed by then CJI Ramana was not able to address the question of diversity in appointments.
I have cross-checked this data from various sources and is true to the best of my knowledge. It may need minor corrections, but that will certainly not alter the larger trend. This data largely states that 80 per cent of the judges appointed by the Ramana-led collegium are from a social group known as ‘upper-caste Hindus’ (non-SC/ST/OBC Hindus). SCs, STs, OBCs and minorities are grossly underrepresented in the collegium picks. During his tenure, three women judges were appointed to the Supreme Court and 43 women to various high courts. We can say that Ramana succeeded in increasing gender diversity on the bench but failed to do the same as far as social diversity and castes are concerned.
A rot within
This finding broadly proves two things.
First, the collegium system is bound to produce and reproduce an upper-caste Hindu-dominated higher judiciary. One or two judges with liberal worldviews or good intentions will not change this paradigm. It is more about the structure than the intention or motive of the individual judges.
Second, Justice Ramana spoke too late. His words do not rhyme with his acts, especially when he was in a position to deliver. India’s judges uttering good or seemingly revolutionary things and ideas during seminars or even during the hearings as observations should always be taken with a pinch of salt. Justice DY Chandrachud has rightly said, “Judges should speak through their judgments… oral orders must be avoided.”
Another set of data demonstrate that the higher judiciary is failing in its duty to deliver justice in time. The pendency of cases in the Supreme Court and high courts is perhaps the biggest problem plaguing the Indian judicial system. According to last month’s reports, 25 high courts have 49.48 lakh pending cases. The Supreme Court has 70,310 pending cases. I am not talking about the cases pending in the lower courts because those judges are not appointed by the collegium system. We have seen Supreme Court judges talking about the issue of pendency, but they still do not act to solve the problem.
The collegium system has gone through some acrimonious challenges recently. The current Chief Justice, U.U. Lalit, circulated a letter last month among members of the collegium mentioning the names of four candidates for Supreme Court judgeship. In place of a physical meeting, he was forced to write a letter because Justice Chandrachud, a member of the collegium, did not attend the meeting on 30 September. Justice Chandrachud and Justice S. Abdul Nazeer objected to Lalit’s “circulating” method of appointing judges. Before a meeting of collegium judges, the Union Law Ministry wrote to Lalit to recommend the name of the next CJI. So, the process of appointing four judges initiated by Justice Lalit has now closed without any result.
This event demonstrated that any two judges of the collegium can stop or subvert the process of appointment of any judge to the Supreme Court!
We don’t know many things about this event, but whatever is there on the surface raises many questions. Top judges in the Supreme Court are fighting it out for the second time. In 2018, Justices J Chelameshwar, Ranjan Gogoi, Kurian Joseph and Madan Lokur called a news conference to show their displeasure with the arbitrary bench allocation by then Chief Justice Deepak Misra. The judges said that “The administration of the Supreme Court is not in order….Unless this institution is preserved, democracy will not survive in this country.”
A new system
In the corridors of the Supreme Court, there is much gossip and stories about the functioning of the collegium. The Times of India reported in 2018 how the list sent by the Allahabad High Court collegium had close relatives of the judges, including a brother-in-law of a sitting SC judge! Allegations of nepotism and favouritism are rampant and have been widely reported in the media. The Union government has taken note of it.
The collegium system evolved out of 2nd Judges case. In the 1st Judges case, also known as SP Gupta vs Union of India (1981), the Constitution bench held that the President will consult the Chief Justice to appoint judges, but his/her decision does not have to concur with the CJI. After 12 years, in the 2nd Judges case, a nine-judge bench overturned the 1981 decision and devised the collegium system. This system gave primacy to the Chief Justice in the selection of judges. Although the executive could ask the collegium to reconsider its decision, if the collegium reiterates its decision, the executive will be bound to make the appointment. In the 3rd Judges case, the Supreme Court laid down the guidelines regarding the functioning of the collegium.
The collegium system is faulty on two main counts.
First, in this system the judiciary has taken over the power of the President of India without amending the Constitution, especially Article 124. It states: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose….”
Second, the collegium system has shown its ugly underbelly. A better system for appointment of judges is now required. A balance has to be found so that the executive and judiciary both have a role in the selection of judges. There should be a mechanism for checks and balances.
The Narendra Modi government should bring a legislative proposal through Parliament on this matter. A new bill on the National Judicial Appointment Commission should be introduced, addressing the grounds on which the NJAC Act, 2014, and 99th Constitution Amendment Act were struck down. In the new mechanism, an appointment commission can be created with members from the judiciary, executive and SC/ST/OBC commissions. A transparent and balanced method of selection of judges should be evolved to make the institution of judiciary more robust, inclusive and reflective of India.
Dilip Mandal is the former managing editor of India Today Hindi Magazine, and has authored books on media and sociology. He tweets @Profdilipmandal. Views are personal.