Collegium System in the Indian Judiciary Needs to be Reformed for Greater Transparency and Accountability

In September 2019, Chief Justice of Madras High Court Vijaya Kamlesh Tahilramani resigned after the collegium upheld their decision to transfer her to the high court of Meghalaya (one of the smallest in the country). Justice Tahilramani was the senior-most high-court judge in the country. The members of the bar associations across Tamil Nadu protested against this move and carried “a one-day court boycott.” In addition, in Maharashtra's Latur, about 2,000 lawyers boycotted court proceedings to protest the transfer. The collegium responded by saying that they have “cogent reasons” for the transfer, and will reveal them if required. 

At the heart of this controversy is the functioning of the collegium system, which makes decisions about appointments and transfers in the higher judiciary. In February 2020, former Supreme Court judge and member of the collegium from 2018–2019, Arjan Kumar Sikri, said that far from a “scientific study” about candidates, “most times, we [the collegium] go by “our impression” when appointing judges [to high courts and the Supreme Court].”

The collegium system is headed by the Chief Justice of India (CJI) and four senior-most judges of the Supreme Court. India’s Constitution originally stipulated that the judges of the Supreme Court and high courts would be appointed by the President based on a process of “consultation” with senior judges. The present collegium system emerged later based on three key rulings. In 1981, the “First Judges Case” ruled that the process of consultation with the CJI and other judges did not require a consensus about recommendations. Essentially, the ruling gave the central government “primacy in judicial appointments.” In 1993, the “Second Judges Case” overturned this decision and introduced the collegium system, arguing that “consultation” required “concurrence.” Specifically, the ruling said that the process of appointing judges would be based on “an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court” and the CJI. In 1998, the “Third Judges Case” ruled that the collegium would be a five-member body, establishing the system that is most similar to the one currently being followed. 

This reading list details how the current system can be reformed. 

Opaque and Unaccountable System
C Raj Kumar writes that the lack of information about the appointment of judges, including the criteria based on which the judges make their choice, is “the most persuasive criticism of the collegium system.”

Without a transparent process of the appointment of judges, the collegium system will not have the credibility and the legitimacy for it to be accepted by all stakeholders within the legal system. Transparency will not be established merely by stating that the members of the collegium will act in a transparent manner. It will have to be demonstrated by the process that the judiciary adopts in the selection of judges.

The lack of transparency and the absence of formal criteria have multiple worrying implications. Presently, there is no structured process to investigate if a judge who is recommended by the collegium has any conflict of interests. This is important in the context where the

… collegium has been fraught with serious allegations of different types of alleged conflict of interest among the members of the collegium and the individuals they have selected to become judges of the High Courts and the Supreme Court. There is an urgent need for the collegium to formulate a detailed set of rules and regulations that will govern the determination of conflict of interest among the members of the collegium who are involved in the selection of judges.

Social Background of Judges  
Alok Prasanna Kumar identifies that the collegium system prefers practising lawyers rather than appointing and promoting “judges of the subordinate judiciary,” which often comprises a diverse pool of candidates. 

As a result of this, the composition of the high courts becomes, literally, an “old boys’ club” featuring largely male, upper-caste, former practising lawyers. This translates its way further into the system as this is the pool from which Supreme Court judges are drawn. Needless to say, the same judges will also find themselves within the topmost ranks of seniority in the Supreme Court, who then decide future appointments to the high courts, creating a self-perpetuating cycle of privilege. 

The collegium system, thus, structurally tends to favour upper-caste males and is far from being representative of the population for whom it seeks to deliver justice. Based on data, it is clear that people from dominant identities are disproportionately represented in the higher judiciary. Specifically, for 37 years of the Supreme Court’s existence, it had appointed only male judges. In 1989, Fathima Beevi became the first woman to be elevated to the Supreme Court to be a judge. Abhinav Chandrachud adds only four out of 127 Supreme Court judges have been women between mid-1985 and mid-2010. He also found that over the same period, there was evidence that three–four Supreme Court judges were from non-Hindu backgrounds. 

C Raj Kumar made multiple recommendations on how to address the problem of disproportionate representation. 

The CJI may consider constituting a “Task Force for Promoting Gender Diversity in Higher Judiciary” with at least 50% of its members as women judges, lawyers and academics to make proposals that will lead to the evolution of a gender diverse higher judiciary in India … [Moreover, law] schools across the country should take efforts to create a more gender diverse student body and faculty inspiring more women law students to seek careers in the judiciary. 

Attempt to Replace the Collegium System
In 2014, the National Democratic Alliance government tried to replace the collegium system with the National Judicial Appointments Commission (NJAC). The commission was to consist of the CJI, two Supreme Court judges “next in seniority to the CJI, Union Law Minister and two eminent jurists.” An EPW Editorial argues that the NJAC too, surprisingly, does not address a major flaw of the collegium system: “the secrecy of its functioning and the lack of reasons for its decisions.”

[T]he shortlisting of candidates, their final selection, and the exercise of a veto in respect of certain candidatures can all be done by the NJAC in secret without any reasons being provided. Safeguards to ensure that persons are appointed on the basis of their ability rather than their connections are thus largely absent. There is no guarantee that the spectre of nepotism and trade-offs that characterised several collegium appointments will not be replicated in the NJAC. 

The Supreme Court argued that the NJAC hampered the independence of the judiciary, and struck it down in 2015. 

Transfer of Judges 
To better understand how the collegium system functions, commentators often present case studies of instances where judges have been transferred to different high courts. Alok Prassana Kumar follows the case of Jayant Patel, the senior-most judge at the Karnataka High Court, who was transferred to the Allahabad High Court in 2017. Given that it was widely expected that Judge Patel would be elevated to the position of chief justice, this move came as a surprise. 

The Gujarat High Court Advocates’ Association and the Karnataka State Bar Council condemned this decision in the strongest language, and boycotted the courts for one day. Criticism was also levelled at the collegium and specifically at Chief Justice of India Dipak Misra by Senior Advocate Dushyant Dave, holding him responsible for harming the judiciary’s independence in no uncertain terms. The criticism seems to have stung, but the first response of the collegium was to close ranks and claim that the decision was “unanimous” (Krishnan 2017). Wiser counsel seems to have eventually prevailed and, on 6 October 2017 (coincidentally, 24 years after the second judges case judgment creating the collegium was delivered [Supreme Court Advocates on Record Association v Union of India 1993]), the collegium uploaded its resolution of 3 October 2017 directing all collegium resolutions concerning appointments and transfers to be uploaded on the website. 

Kumar, in a separate article, recounts four instances of judges being transferred from their positions and examines the implications of the moves. He notes that the collegium’s decision has often been met with resistance from the bar, in instances where their recommendation has been felt to be unfair and unsubstantiated. 

It is in this context that one must examine the collegium’s resolution dated 3 October 2019,2 which gives detailed reasons for reiterating certain nominees to the Karnataka High Court (SCI 2019c). More specifically, it reproduces and rebuts complaints and allegations made against each of the four nominees on the basis of which the union law ministry returned the four names to the collegium … In each case, the collegium has gone into the specifics of the complaint, either finding that it is a bald assertion with no factual support or rebutting it with material already on record. Such an exercise is the first of its kind that the Supreme Court has undertaken while reiterating a recommendation. 

Kumar adds that the collegium has, historically, on requests for clarification and reconsideration, repeated its recommendation rather than share their justification for their decisions. The resolution, thus, was noteworthy because of two reasons. 

One, it removes any doubt over the suitability of the nominee to the position in question over vague “complaints” or “allegations” since they have been listed and dealt with as a matter of public record. Two, it puts the onus on the union law ministry to process the nomination quickly with its concerns addressed in a public and forthright manner. It is a great example of how more transparency only helps the collegium do its job better rather than hinder it in any way.