Collegium has flaws, but that’s the cost of judicial independence

Editor's note: In this debate, we ask the question — 'Is it time to rid the Supreme Court of its collegium?' Arguing against the motion is Prateek Chadha, an advocate in the Supreme Court and the Delhi High Court. Read the counterpoint to his debate by Sumathi Chandrashekaran here.

If you are having problems in your marriage, you have two options: try and fix the issues, or get a divorce and bet you will find a better partner. Just like marriages, no system is perfect and there can be no question that the Supreme Court’s collegium formula of judges appointing judges has many shortcomings. The critics of the setup are quick to point out that it suffers from nepotism and a lack of transparency. While there can be no getting away from the truth of these criticisms, the question we need to ask ourselves is whether they mean that the collegium system should be done away with?

I would argue that the answer to this question is clearly ‘no’.

 Collegium has flaws, but that’s the cost of judicial independence

File image of the Supreme Court. AP

To understand why, we need to appreciate the reason behind the collegium’s creation. The fact is that the system came about as a last-ditch attempt by the judiciary to preserve its independence after decades of executive interference. The years before the collegium came into being were marked by numerous instances of governments refusing to appoint deserving candidates whose political beliefs were inconvenient to them. There were even instances of judges being denied the opportunity to become Chief Justice of India on account of the fact that they had decided important cases against the Central government.

All of this had created an atmosphere in which the judiciary completely failed the people of India during Emergency and in the infamous ADM Jabalpur vs Shivkant Shukla (1976) case, some judges went as far as to say that an ordinary citizen did not even have the right to life during a state of emergency.
Consequently, it was felt that there was a need to insulate the judiciary from the pernicious influence of the government.

As a result of the insulation of the courts from government influence by way of the collegium system, our judiciary routinely decides important cases against governments of the day. This can be seen from the decisions in politically significant cases such as those relating to the dissolution of the Uttarakhand Assembly and the turf tussle between the Centre and Delhi government.

By making judges solely responsible for the appointment of their successors, the collegium system has created a set of stakeholders with interests that will always be distinct from those of the government of the day. And while it can be persuasively argued that the interests of the judges are not always calibrated to ensure that only the most suitable candidates are elevated, the mere existence of the collegium means that the single-largest litigant in India does not decide who will be hearing its cases.

Another argument that is often made is that the collegium needs to be done away with as it is inherently undemocratic and means that judges who do not enjoy any popular support at all are given tremendous powers over the lives of ordinary citizens. However, this argument ignores that the Constitution has deliberately created such a situation as judges are often required to make hard decisions that may well require ignoring the demands of the majority of citizens to secure the fundamental rights of all citizens. Any attempt to make the courts more amenable to the democratic will of the people will inevitably result in an India that has less regard for the rights of minorities and is, therefore, to be avoided. Our courts have a proud history of being able to buck the popular will and do what is correct. Decisions such as those in the Shah Bano, Kaushal and Sabarimala cases would never have emanated from a more overtly political judiciary.

None of the proposed alternatives to the system are guaranteed to ensure that only the most suitable candidates are appointed. Whoever is given the power in an alternative system will inevitably appoint judges that suit their own interests. Take the National Judicial Appointments Commission Bill that was struck down by the Supreme Court, for example. The provisions for selection of judges in it meant that the central law minister of the day and some prominent members of the Supreme Court Bar would have had a significant say in the appointment of judges.

There has been increased scrutiny of the decisions made by the collegium and, hopefully, over time, this will lead to an improvement in the quality of appointments made by it.

Till that happens, however, the flaws of the collegium system will just have to be understood as the cost we pay for an independent judiciary.

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Updated Date: Feb 09, 2019 10:12:36 IST