It’s now obvious to everybody that not everything is fine with the collegium system. Its internal problems – lack of transparency, arbitrariness in decision-making and personal prejudices overwhelming collective judgement – which were talked about in hush-hush voices have come out in the open after Justice J Chelameswar’s protest letter to Chief Justice TS Thakur.
Justice Chelameswar, a member of the collegium, pointed to the opaqueness in the functioning of the five-member body while demanding that records of its deliberations be maintained to register dissent, if there is any. He has been backed by former members of the collegium such as Justice Lodha and other senior members of the legal fraternity. For an institution locked in a bitter battle with the executive over the power to make appointments in the higher judiciary, the development comes as an embarrassment. It not only snatches away the high moral ground the judiciary seeks to occupy in the debate but also makes the case of the executive seeking more say in the appointments sound more reasonable.
The primacy of the judiciary in such appointments, though mentioned nowhere in the Constitution, has been established in the second and third judges cases of 1993 and 1998. The executive has not been pleased with the curtailment of its power and has been trying to reassert itself from time to time. It had managed to bring the National Judicial Appointments Commission Act to replace the closed collegium system with a more transparent, broad-based system. But fiercely guarding its turf, the Supreme Court rejected it. Since then, both institutions have been in a tug-of-war.
For the sake of institutional independence and sanity, it’s always good to keep politicians away from the judiciary. It’s the same way the military should be kept free of political influence. Politics has a way of corrupting everything it touches. But how does the judiciary defend itself if insider voices expose its weaknesses and it does not appear honest and clean in its conduct? There have been charges of rampant nepotism in selection of judges and other lapses by the collegium for many years now. That the collegium operates in non-transparent manner, overruling even its own, is also well-known.
What stops it from getting its own house in order? If news reports are to be believed, CJI Thakur is yet to respond to Justice Chelameswar. The judiciary is yet to come up with any idea to make itself appear cleaner. While the chief justice has gone public about the shortage of judges in the country and how it is affecting justice delivery, he has not so far suggested ways to make the collegiums system better. No wonder the executive finds stronger ground to involve itself in appointment of judges.
Those running the collegium tend to forget the fact that their own credibility is at stake. As is the case with all institutions of the democracy they are finally accountable to the general public. They have made themselves unaccountable. This can be perceived as arrogance. While the judiciary is already making the legislature and the executive uncomfortable with its acts if overreach, activism and interference in policy matters, it is increasingly making its moral position weak by acts of indiscretion in its own case.
As cases keep piling in courts — more than three crore at last count — and a situation of scarcity in justice delivery stares at the ordinary masses due to shortage of judges, it’s time the judiciary lifted itself out of the mess it has got itself in. CJI Thakur would do well to look within and bring in correctives. He can begin with responding to Justice Chelameswar.