Collegium has to go, and it is just a matter of time before it does

Editor's note: In this debate, we ask the question — 'Is it time to rid the Supreme Court of its collegium?' Arguing for the motion is Sumathi Chandrashekaran, a policy lawyer with interests in legislative, regulatory and judicial reforms. Read the counterpoint to his debate by Prateek Chadha here.

The question whether the Supreme Court collegium should be dropped as a mechanism for appointing higher court judges has become redundant. Every day that passes points to this opaque process being completely incongruous with the democratic ideals of transparency and accountability that India aspires to.

During the constitutional challenge posed by the National Judicial Appointments Commission in 2014-15, several concerns were raised about the collegium process. However progressive the idea of the commission was, it was not surprising that a five-judge bench of the Supreme Court rejected the law for the commission’s composition as impinging on the judiciary’s independence.

In the months following the decision, one felt the judiciary would move towards transparency in its appointments. This was when the executive and the judiciary parleyed over a memorandum of procedure (MoP) for judicial appointments after the court (unusually) asked for public comments. Today, hundreds of comments on, there is no sign of the MoP coming to life.

 Collegium has to go, and it is just a matter of time before it does

Four of the senior-most judges of the Supreme Court at a press conference. PTI

One small concession in process was made: collegium resolutions are now available on the Supreme Court website. While this is a positive step, only the final resolutions are available. There is no information on how these resolutions came about, or what the meeting agenda was, or why certain individuals were identified for elevation or transfer. Are individuals selected on grounds of regional representation, or merit, or seniority, or something else entirely?

The absence of a clearly defined MoP means appointments, elevations and transfers of judges remain arbitrary, ad hoc and subjective. There is also no guarantee that the collegium’s decisions are final, as demonstrated by a recent reversal of a decision.

The design of the collegium causes the judiciary to run the risk of cronyism and a similarity bias — i.e., judges may prefer to recruit those known to them, or are just like them.

There is sufficient data to point to cronyism in the judiciary. The prevalence of a similarity bias is less tested, but can be especially dangerous. The temptation of selecting candidates that are like yourself, whether in terms of gender, class, education, or other socio-economic factors, is very high for any recruiter in any field of work. It can mean valuable criteria such as merit and diversity are disregarded. More problematically, we can also end up having an institution that is highly homogenous. Even if it is sought to be mitigated, an unintended outcome of a similarity bias is it can get embedded in perpetuity.

Judges who are picked by judges like themselves may continue to do the same. This can further impact how judges think about adjudication itself.

For example, it may well be that a shared socio-economic background has led to Indian judges becoming inclined to decide in favour of one group of litigants over another in certain kinds of cases. This has not been proven conclusively as yet. But anyone concerned about the health of the judiciary will agree that implicit biases are not a good thing.

As noted earlier, the question whether the Supreme Court collegium should go is superfluous. The better, more relevant, question is, when will the collegium be relegated to the history books? Who will undertake this task? And what form will the selection process of judges take?

The two other arms of the State have made attempts at effecting change. The legislature tried to enact, but failed to retain, a constitutional amendment to set up a judicial appointments commission. The executive tried to work with the judiciary to redraft and finalise the MoP. While seemingly assuming the role of cooperator, the executive has also pushed back on many recommendations made by the collegium and delayed selection of judges.

Even within the judiciary, individuals have tried to protest, notably Justice Jasti Chelameshwar, who walked out of the collegium reportedly because he was unhappy with the non-transparent manner of proceedings. His experience shows a solitary challenger can shake things up. Institutions, like people, evolve. We just have to be patient and wait. Change will come.

 

Updated Date: Feb 09, 2019 10:14:57 IST