CJI Lodha is wrong to bat for an opaque collegium system of appointing judges

There is little doubt that the Indian judiciary is under intense scrutiny. With former Supreme Court judge Markandey Katju in a tell-all mood post-retirement, the dirty linen is being washed energetically in public view. In his latest  blogpost on 10 August, Katju talked about how former Chief Justice SH Kapadia did nothing about a corrupt Allahabad High Court judge even after intelligence taps on his ‘agents’ revealed corrupt practices. The ex-CJI claimed he did not recollect the incident and anyway he did not recommend the elevation of any unfit judge to the Supreme Court. To which the irrepressible Katju retorted that in ex-CJI KG Balakrishnan’s tenure, one more judge with a negative reputation (PD Dinakaran) almost made it to the top court, and Kapadia was a part of the collegium that took this decision. Given the widespread debate generated by Katju’s recent holier-than-thou volubility, a rattled Chief Justice, RM Lodha, has rushed to defend the collegium system of picking judges. He pointed out that he was one of the first judges to be so chosen after the system was put into place. “Don’t shake the confidence of the people in the judiciary,” he warned. He added that the entire current Supreme Court had been selected by the same collegiums system. [caption id=“attachment_1658873” align=“alignleft” width=“380”]  AFP[/caption] However, the honourable CJI needs to be contradicted. Merely because honest judges have also been appointed through the collegium system it does not follow that everything is all right with it. Even earlier, when it was the government which had the prime role in appointing judges, many honest judges were appointed. Does this mean giving primacy to the government in appointing judges was the best thing? In an article in The Indian Express, senior advocate TR Andhyarujina explains how the constitutional provision for the appointment of judges was essentially hijacked by the Supreme Court in the name of judicial independence. According to Andhyarujina, articles 124 and 217 of the constitution say that judges of the Supreme Court and higher courts will be appointed by the president (meaning the government) in consultation with the Chief Justice of India and other chief justices and judges of the high courts. In a 1981 judgment, the Supreme Court itself upheld this system. But later, in two subsequent judgments, the Supreme Court decided that the government would merely have the right to express doubts over judicial appointments – which could be over-ruled by the CJI. This was how the collegium system came to dominate judicial appointments, with the Supreme Court arrogating to itself the right to appoint judges, something the makers of the constitution never intended. Says Andhyarujina: “The judgments in the second and third judges’ cases are an extraordinary tour de force in the name of securing the independence of the judiciary. The court has rewritten the provisions of the Constitution for the appointment of judges. The executive’s function in the appointment process has for all practical purposes been eliminated and reduced to the formal approving of a recommendation made by the CJI and his collegium.” Almost nowhere in the world do judges appoint judges for the simple reason that this makes for a complete lack of accountability in the judicial system, reducing elected leaders to mere rubber stamps in judicial appointments. Quite clearly, the CJI is wrong to defend this system, even though he is right to highlight the need to keep the judiciary independent. Many suggestions for creating permanent judicial appointments commissions (even two such commissions) are doing the rounds. While these may not solve all the problems in finding good, honest judges for the higher courts, they will clearly be an improvement on the current system of judges doing the job behind closed doors. The independence of the judiciary needs transparency in the processes of short-listing, selection and final appointments of judges. The CJI is thus wrong to defend the current collegium system which is past its sell-by date.