Recently president Ram Nath Kovind opined that the ‘judges-appointing- judges system’ needs reform. Currently the collegium system is justified on explicit as well as implicit grounds. We can analyse these better if we divide the whole issue into two separate questions -who will appoint the judges and how the judges will be appointed?
Who will appoint the judges?
There is no way a republic can allow the judges the power to appoint themselves because in that case it is not a republic but a judocracy. However, the collegium system is defended on the ground of independence of judiciary. The independence of Judiciary argument largely obfuscates the matter. By the time the Indian Constitution was written the world was already evolved. What are the basic ingredients of a liberal democratic republic was already known. Separation of power is the crux of the matter in a liberal democratic constitution. Separation of power effectively means independence of judiciary. Therefore, a liberal democratic constitution will never come into being without dealing with the issue of independence of judiciary. Our constitution must have adequately dealt with the independence of the judiciary and it has. It doesn’t require a basic structure doctrine to find this out. The difficult process of removal of high court and Supreme Court judges prescribed in the constitution can easily suggest that this is about the independence of judiciary. Therefore, to say that one requires a basic structure doctrine to find out independence of judiciary in our constitution is more of an intellectual show off.
If the argument is that the judges appointed by the government will be loyal to the government then were the judges before the collegium system not independent? Are judges of USA and UK not independent? How much history supports the theory of ‘once loyal always loyal’!
Be that as it may, let’s for a moment grant that the judges should have the power to appoint themselves. But the key issue is not about who will appoint the judges but how they will be appointed. People are outraged at how the judges are appointed. People won’t complain about a benevolent dictator but only about a malevolent. So, it doesn’t matter who but matters how.
Another ground on which the collegium system is defended is that the Judiciary is supposed to possess superior knowledge about the constitution and therefore they must have got it right when they advocate for collegium. But can the judiciary claim to have some mysterious secret knowledge about constitution that others don’t have! Constitution is not an esoteric religious scripture that the laity cannot claim to have knowledge. How can parliament make laws if they have no knowledge about constitution! So, the notion that judiciary has superior knowledge about constitution than parliament is not convincing.
The court in a democracy is supposed to arbitrate between the legislature and executive. The interpretation of the constitution by the judiciary is final because of this reason of being umpire and not because the judiciary has any superior knowledge of the constitution. Drawing analogy from cricket the umpire is not necessarily a better player but both the teams have to obey the umpire. But if both the teams express their lack of confidence in the umpire, then what remains of the legitimacy of the umpire! If it happens in the middle of the game then the game has to begin afresh. When ‘separation of power’ principle which is the very rationale of making a constitution is violated then it is no more a constitutional question but it is a pre-constitutional question.
How the judges will be appointed – the violation of equality because every eligible candidate has the right to be screened for consideration of judgeship
An opaque unscientific arbitrary appointment process is a violation of equality. Equality of opportunity is not only to be done but seen to be done. Without an open advertisement how can the high court say that all the advocates are examined for recommendation for judgeship!
The constitution uses the word ‘a high court’ and not ‘the high court to which the advocate is recommended for the judgeship’ Therefore, all the advocates with 10 years’ experience in any high court in India are eligible for the consideration of a judgeship in a particular high court. Therefore, if advocates of other high courts are not considered as prospective candidates while considering the judgeship of a particular high court then it is violating Article 14. The counter argument to this would be that each high court will take into account their advocates and that’s how balance is maintained overall. But this is a gross distortion of the constitutional provision. This is creating a quota system in the judiciary on the basis of high courts.
Even if a high court focuses only on the advocates of that high court, is it capable of judging the merit of the advocates in terms of time and energy? The law can assume only a human and not a superhuman. If the high court claims that it examines the merits of all the eligible advocates of that high court for recommendation to judgeship then the assumption has to be based on a superhuman ability. For example, currently, as per the website (E-Directory – Punjab & Haryana high court Bar Association (punjabharyanahighcourtbar.in) the Punjab & Haryana High Court Bar has 5383 members having 10 years’ experience (considering registration year). Assuming that it takes one day to screen 10 candidates it will take 100 days to screen 1000 candidates assuming that at least 1000 deserve screening out of 5383. It is well known that the judges don’t have one thing – time. Therefore, it is very difficult to believe that all the eligible candidates are examined before the recommendation to the judgeship. This is a violation of equality principle by violating the merit principle.
The collegium system is not taking the help of any bureaucracy like the Union Public Service Commission. The government requires recruitment agencies like UPSC because though the government requires IAS, IPS etc. it doesn’t have the time and energy to recruit and train them.
Another issue that kicks in from the side is the issue of reservation. People think that reservation will be mandatory if there is an all-India higher judiciary recruitment system. These people don’t know that reservation is not there where it matters most – all the higher echelons like higher scientific and technical positions and defence. Therefore, reservation is not a must for an open and transparent higher judiciary selection system. The real fear is that the moment there is an open and fair selection system for higher judiciary SC ST OBC can get in there even without reservation or despite ‘suitable candidate not found’ mechanism. If they can top the civil service then why cannot they crack the higher judiciary!
In sum, the collegium system appears to be violating the principle of equality in two ways- selection on the basis of a type of high court quota, and not adhering to merit principle due to lack of an open, transparent and suitable selection system.
Sthabir Khora, Professor & Dean, School of Education,Tata Institute of Social Sciences, Deonar