Why Collegium needs urgent reform: Judiciary should be independent as well as accountable

Judicial accountability and judicial independence have been consistent subjects of debate over several decades of the development of Indian constitutional law. It is generally observed that both of these principles are mutually competitive, even though that may not be the case in reality. Yet, it is necessarily important that both principles form part of any modern constitutional order in some way or the other. A non-independent judiciary may be accountable, but it certainly can never function optimally. Similarly, an unaccountable judiciary may be independent but can always exceed the domain of its functions. An independent judiciary is necessary so that the judges are under no kind of fear while deciding a case and are able to reach the correct outcome in the cases before them. An accountable judiciary is important so that the people are able to repose their confidence in the judiciary by believing that the judges are also not free to err. One of the essential stages of ensuring independence is the appointment process. It is important to realise that the appointment process needs two-stage scrutiny. First, the process should make sure that the best person is selected for the job who has sufficient merit to hold that office. Second, the process should be transparent so as to make sure that the public, in general, has confidence in the same and that they are convincingly reassured that, indeed, the best person is being selected for the job. The global consensus on efficient administration is on the implementation of the separation of powers doctrine. It has been implemented in some form or the other by most modern states. The doctrine provides that executive, legislative and judicial functions should be exercised by authorities which are separated from each other. On this line, the US is the most prominent example, where the US Congress is the legislative organ, the President is the executive head, and the US Supreme Court is the judicial organ. All three organs function completely independently of each other. The UK, on the other hand, practices supremacy of parliament, where all other wings of the government are subordinate to the British Parliament. Our constitutional order provides that there is no separation between the executive and the legislature, but the judicial wing is separate from the two. The British model is now closer to ours after the enactment of the Constitutional Reform Act in 2005. Now, the judicial functions of the House of Lords have been taken away, and an independent Supreme Court exercises the highest judicial functions for the UK. The mode of appointment of judges is closely linked to the independence of the judiciary. This is so because, in a large majority of cases, the government is the chief litigant before the courts, and if the judges are plain nominees of the government, then their candidatures are certainly not optimal. Different jurisdictions have evolved different mechanisms to appoint judges, considering the need for independence from the government. For instance, in the US, the President has the authority to appoint judges and they are confirmed by the Senate. Their independence is insured by the fact that they are appointed for life and, thus, can freely perform their duties as per law. The UK now has an independent Judicial Appointment Commission (JAC) to appoint judges, which recommends the appointments to its higher judiciary. It is completely independent of the government. The 13 out of 15 members of this commission are interestingly selected through open competition. The supreme court judges are recommended by another commission which comprises the current Chief Justice (referred to as President in the UK), another judge who should not be a judge of the UK Supreme Court, a member of the JAC, and other members including people from non-law backgrounds. Interestingly, the chairman must be a non-lawyer. The current chairman is a Professor of Surgery at the University College London. This is something which is completely unimaginable in India. Before the introduction of the JAC, the judges were appointed by the Lord Chancellor, who was a nominee of the British Prime Minister. The deliberations for such appointments happened through a method known as  ‘secret soundings’ in which a small minority of the senior judges were consulted, and the process was opaque. In response to criticism of that system, the JAC came about in the UK. In India, the Supreme Court and the High Court judges are appointed by the collegium of five senior-most judges of the Supreme Court of India. This body also considers and debates on names of prospective appointees through a method very similar to secret soundings. The body, by its sheer composition, looks rather monolithic in comparison to the JAC in the UK. The process is thus very unsophisticated in contrast. In addition to the composition of the body, the process it adopts is largely non-transparent. For instance, there is no record of how many names were considered by the Collegium, on what basis certain persons were selected and others were not selected, why only a particular set of persons were considered for selection directly from the bar to the Supreme Court bench as opposed to certain others. We do not know on what basis judges from a particular high court were preferred over other high courts, and very importantly, on what basis certain high court judges were selected as Supreme Court judges, and the Chief Justice of the respective High Court was superseded. Such appointments and selections can definitely happen in all fairness on the basis of the merit of the individual judge concerned, but the procedural due process demands reasons and considerations for such decisions should be made public to make the appointments more acceptable to the public at large. This process, while being opaque, has also ensured that the selection of the judges has been from a rather  narrow pool of people. The pool is not limited to being narrow in terms of the social and economic elite class of lawyers. It is also limited in other dimensions as well. First, not a single distinguished jurist has been appointed as a judge of the Supreme Court of India in our history, even though the Constitution provides that such an appointment can happen. It can certainly be no one’s argument that we haven’t produced a single distinguished jurist worthy of being appointed as a Supreme Court judge. Second, the judges of the Supreme Court and the high courts have been  disproportionately direct elevations from the bar, either being elevated to the High Court first and then to the Supreme Court, and in certain cases, directly to the Supreme Court. Only  a bare 10 percent of all judges of the Supreme Court have been those who were elevated from the lower judiciary first to the high court and then to the Supreme Court. Clearly, there is an impending need for reform in the current Collegium system. It can be argued that the NJAC, which was earlier proposed by the government, also did not provide a very nuanced process to select the judges of the higher judiciary. Regardless, there should be an academic consensus on the fact that the current system is not undesirable and needs reform. A case for reform and increasing judicial accountability is also made by different studies, including  this one which points out that an increase in judicial accountability leads to an increase in the per capita income of a country. Suppose we were to follow the UK, as has been our national habit in most cases when we consider building institutions and enacting laws. It is prima facie a very good idea to introduce competitive exams to select judges, if not directly to the higher judiciary, then to the lower judiciary first and then gradual promotions to the higher judiciary. Even when a person is being considered to be directly appointed to a high court or the Supreme Court, it is a good idea to advertise the posts, hold an interview at least, and publish the list of selected candidates and the criteria on which such selections happened. At the same time, direct elevations from the bar should be limited, and appointments from the services should occupy a higher proportion. Examinations do happen for selection of judges to the lower judiciary but they happen at the state level and the selected candidates are appointed to a rank from where very few are able to reach the high court in the natural course. To remedy this, young law graduates can be directly appointed as Additional District Judges through a tougher but an all India level examination which can be conducted by the UPSC, much on the lines of the civil services examination. After all, a young college graduate can be appointed as an Additional District Magistrate after clearing the civil services exam. Why can’t the same be true for an Additional District Judge? We have a really good track record at least in terms of a clean process, of appointing bureaucrats, diplomats, police officers, through a competitive examination, the same can also be true for judges. We can hope the current conflict between the executive and the legislature proves to be a blessing in disguise and ushers in much needed progressive reforms in the judiciary. The author is an Assistant Professor of Law at the National Law University Delhi. Views expressed are personal. Read all the Latest News, Trending News, Cricket News, Bollywood News, India News and Entertainment News here. Follow us on Facebook, Twitter and Instagram.