Wednesday, November 04, 2015


Here are some suggestions that the Supreme Court should consider for improving ''Collegium System'.
Picture courtesy - Offcial website of the Supreme Court
In the fourth Judges' case namely WP (Civil) 13 of 2015 Supreme Court Advocate on Record Association Vs Union of India, the Supreme Court held the Constitution (Ninety-nitnth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014 as unconstitutional. It annulled the establishment of the Commission to appoint the  Judges in the higher judiciary, Chief Justices as well as to consider their transfers and restored the collegium system.

There are grave doubts regarding correctness of the judgement: methodology of appointment of of a judge is neither a judicial power nor is part of independence of judiciary - it is purely an executive act. However the welcome part of the judgement is, inviting suggestions for introduction of appropriate measures for an improved working of the collegium system. This is what the court is now considering. Here are some suggestions that should weigh heavily in the mind of the court. 

There should be objective criteria for the appointments and they should be adhered to: there should not be deviation. It is often that the criteria is deviated while considering different persons. It is common perception, 'Show me the person, I will show the policy.' This should not happen. 

The criteria could be regarding age or tenure of the judge. The minimum age for High Court and Supreme Court preferably be 45 and 55 years. No one may be recommended for High court or Supreme Court judgeship unless he will  have at least ten or five years of tenure as a High Court or a Supreme Court Judge. No one be appointed as Chief Justice of India unless he has tenure of two years. In case the date of retirement is increased, this period for tenure may be increased. There may be some other criteria as well.

For Appointments in the High Court
The procedure for the appointment should involve others but should be practical as well. It is not a good idea to invite applications for the constitutional post of the higher judiciary. 

The Chief Justice may request his Brother Judges, Senior Advocates (normally practising before that court), and President Bar Association to suggest names for the appointment. In order that there may be representation of the executive as well, the Chief Minister and the Governor may also be requested to suggest the names.

If the list is too long then short listing may be done by the members of the collegium.  The short listing may be on the basis of the ability only. It may be larger than the names sought to be recommended. Thereafter, the suitability and the character of the short listed candidates may be considered. This may be, by own experience of the members of the collegium; by the reports from the other Brother Judges, President Bar Association, as well as intelligence authorities.

The short listed candidates should be be interviewed by the collegium, broadly apprising them the objections if any and seeking their explanations. The final list may be prepared thereafter. The minutes may show the names considered and the names that are being sent. The reports should be part of the record.

For Appointments in the Supreme Court
For appointments from the Bar similar procedure as for the High Court be adopted except that in place of the Chief Minister and the Governor, the Law Minister may be requested to suggest the names.

For appointments from the High Courts, the names of at least three senior most judges from a court be considered. The short listing may be done according to geographical representation in the Supreme Court. The reports about the judges in the short list may be obtained from the senior advocates of the court where he has served as well as from the intelligence authorities. The judges in the short list may be invited over a cup of tea and they may be broadly informed if there are any adverse reports/ comments, seeking their explanation.

The minutes may show the names considered, the names that are being approved, the reasons for not accepting adverse report and in case of any supersession the reasons for the supersession. 

For Transfer
A Judge, who is being considered for transfer (other than on his own request), may be personally called and informed the reasons for his tentative transfer. The final decision to transfer him may be taken only after considering his reply. The reasons should be part of the record.

An Important Aspect
Nevertheless, the one most important single step that can improve judiciary, selection of judges, is to make the retirement age of the Supreme Court and the High Court judge equal. The difference in age encourages unhealthy competition among the prospective appointees and sometimes recommendation of dubious names for the High Court judgeship.

In case the retirement age is made equal then this will improve the collegium system, selection of  better  candidates as the High Court judges, and will also remove the unconscious, inherent bias of the higher court judges. This will lead to better and independent judiciary. Of course, this requires a constitutional amendment that can only be done by the Parliament but the court can always make recommendation to that effect.

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