Since the advent of the collegium system in 1993, it has been a matter of contention. It surfaced again in the daily with the despotic transfer of the Chief Justice of Madras High court, Vijaya Tahilramani to the Meghalaya High court. To understand why this issue has never left the editorials, it is paramount to have a Historical Overview.
The word “Collegium” is not present in the Constitution and any of its forthcoming amendments. Historically, the Constitution gave the power of getting the judges on board to the President, on the advice of the Governor of the state and the concerned Chief Justice of the High court. Similarly, the judges of the Supreme Court were appointed by the President on the advice of the Union Ministers. However, over a period of time it was realised that this gave superfluous powers to the Legislature and the Executive at the behest of the President. It was believed that this ritual might be against the Checks and Balances nature of the Indian Constitution as one would not expect the appointed judges to bring to justice their political godfathers. It was also believed that the Judicial Independence shall never get compromised. No wonder, it is imperative to think this, as a similar case appeared during the emergency when the SC gave the Government the right to violate the fundamental life of life and liberty.
This system also tampered with the Judicial Independence of the Supreme Court. Independence of the judiciary is one of the basic structures of the Indian constitution and to achieve this aim the collegium system was introduced by the three judges case (1982,1993,1998) .Under this system a judge is appointed to the supreme court by the president on the recommendation of the collegium — a closed group of the Chief Justice of India, the four most senior judges of the court and the senior-most judge hailing from the high court of a prospective appointee. Albeit the President was given the power to reject a recommended name (however, it is seen that the president has not been diligent in using his power).
Back in history, when the constituent assembly debates were going on Jawaharlal Nehru speaking on higher judicial appointments, said that the judges selected should be of the “highest integrity” and be persons “who can stand up against the executive government and whoever might come in their way”. And no wonder the appointment of judges lies at the heart of the independent judiciary. The creation of the Collegium and its working has drawn criticism from Jurists and legal experts around the world. The abuse of power by the collegium is the most hotly talked issue when it comes to appointment of the judges. This is primarily because the deliberations done by the collegium and the reasons for its decision making are not made public. Although, the parameters guiding its decision making are not unknown but majorly, they do not fit in. In the above talked case of Justice Tahilramani, no specific reason was given. The ground was the betterment of the Judicial System. This gives the collegium an ocean big grey area to operate in. A rational counter argument to not unravel the exact reasons are that it might affect the independent functioning and integrity of the concerned in the future. For example, if a judge is transferred on the grounds of pandering in corruption, other like-minded individuals present in the court of advent of the Judge may get a reason to celebrate.
The contentions behind the Collegium surface time and again. In 2015 an act called National Judicial Appointments Commission (NJAC) was passed by the parliament and was assented by the President. This commission was responsible for making judicial appointments and transfer of judges in the highest judiciary. Apparently though, this system was stuck down by the constitutional bench of the SC, by a 4:1 split verdict declaring it as unconstitutional and restoring the two-decade old practice of the collegium system writing the fate of the higher judiciary per se. In an attempt to make the collegium more responsive and transparent the SC in November,2015 agreed to hear the opinions of both the parties (NJAC pro and against) on four major parameters. In short, they were regarding the eligibility criteria of judges, a mechanism to hear complaints and whether a separate secretariat is essential. In the context of this it is imperative to understand that the selection of judges remain a very subjective practice as a lot of judges may have the same eligibility. This is the sole reason why allegations of abuse of power occur.
While, attempts should be made to objectify the practice otherwise the exercise of gargantuan power will continue to take place. The only choice shall be that who should be given this absolute despotism, the judiciary or the executive. Meanwhile, reforms and righteousness are a pie in the sky.