Context

• The recent developments concerning the Supreme Court of India’s Collegium system have rekindled debates about its effectiveness and necessity for reform.
• Two noteworthy resolutions have come to light: the Collegium’s decision to conduct interviews of candidates for High Court judgeships and its intention to limit the selection of candidates with close familial ties to existing judges.
• However, these steps, laudable as they might be, must be viewed alongside the long-standing concerns surrounding the Collegium's structure, transparency, and its interplay with the executive branch.

Evolution of the Collegium System

• The Collegium system owes its existence to judicial interpretations rather than constitutional directives.
• Envisioned as a mechanism to safeguard judicial independence, it emerged from the Second Judges Case (1993), where the Supreme Court interpreted ‘consultation’ in Article 124 of the Constitution to mean ‘concurrence’ by a Collegium comprising the Chief Justice of India (CJI) and senior judges.
• This decision aimed to protect judicial appointments from undue executive influence, establishing the judiciary as a self-regulating institution.

A Deeper Examination of Challenges to Collegium’s Effectiveness

• Opacity in Functioning
  • The decision-making process is conducted behind closed doors, with no formal minutes or publicly available records of deliberations.
  • This secrecy undermines public trust in the judiciary and creates an environment where allegations of favouritism, nepotism, and bias can thrive.
  • The absence of clear criteria for evaluating candidates further complicates this issue, leaving the process vulnerable to subjectivity and inconsistency.
• Executive Interference and Delays
  • Despite the judiciary's primacy in appointments, the executive wields significant power to delay or obstruct Collegium recommendations.
  • The government can employ various tactics to impede the process, such as:
    • The executive often sits on recommendations indefinitely, neither rejecting nor approving them.
    • This stalling tactic creates uncertainty and undermines judicial efficiency.
    • The government may cherry-pick recommendations, accepting some while returning others for reconsideration without adequate justification.
• Nepotism and Lack of Diversity
  • Judges are often accused of favouring candidates with familial or professional ties to existing members of the judiciary.
  • This practice limits opportunities for deserving candidates from diverse backgrounds, leading to a judiciary that is not representative of the broader society.
  • While the recent resolution to exclude candidates with close familial ties to serving judges is a step in the right direction, its implementation remains uncertain.
  • Moreover, excluding candidates solely based on familial connections may inadvertently disqualify highly competent individuals, highlighting the need for nuanced reforms.
• Absence of Binding Rules
  • The Collegium operates without a codified set of rules, relying instead on informal practices and traditions.
  • This lack of a binding framework creates inconsistencies in its functioning. For example, there is no guarantee that the Collegium under different Chief Justices of India (CJIs) will adhere to the same standards or priorities.
  • This ad hoc approach not only undermines predictability but also makes the system vulnerable to manipulation.

Attempts to Reform the Collegium System and SC Verdict on It

• The National Judicial Appointments Commission (NJAC) Act, 2014 sought to replace the Collegium System with a commission, for the purpose of appointment and transfer of judges in the Supreme Court and High Courts of India.
• The act aimed to make the process of judicial appointments more transparent and accountable.
• However, the Constitution Bench (4:1 majority) of the SC struck down the NJAC Act and the 99th Constitutional Amendment as unconstitutional.
• The Court reinstated the collegium system, emphasizing the importance of judicial independence. 

Proposals to Reform the Collegium System

• Introduction of Candidate Interviews
  • The decision to interview candidates for High Court judgeships aims to provide a more holistic evaluation
  • Interviews can help assess a candidate’s judicial temperament, ethical outlook, and understanding of constitutional principles, which are not always evident from written records.
  • This reform can create merit-based appointments by ensuring that candidates’ skills, perspectives, and values align with the judiciary’s needs.
• Addressing Nepotism
  • By discouraging the selection of candidates with close familial ties to serving judges, the Collegium seeks to enhance diversity and meritocracy in judicial appointments.
  • This move could break entrenched power structures within the judiciary, opening the door for individuals from diverse backgrounds, including first-generation lawyers and underrepresented communities.
• Codification of Collegium Processes
  • Formalising the Collegium’s functioning through a codified set of rules is essential to ensure consistency and predictability.
  • A clear framework outlining eligibility criteria, selection processes, and timelines can eliminate ambiguities and reduce discretionary decision-making.
  • Codification would bring much-needed structure to the Collegium’s operations, making it more transparent and less susceptible to allegations of arbitrariness.
• Time-Bound Approvals
  • Instituting a fixed timeline for the government to act on Collegium recommendations would address delays in judicial appointments.
  • This could include binding deadlines for either accepting or returning recommendations with detailed reasons.
  • Such a mechanism would reduce judicial vacancies, alleviate case backlogs, and improve overall efficiency in the judiciary.
• Transparency Through Public Disclosures
  • Publishing detailed justifications for appointments and rejections could enhance public trust.
  • This includes disclosing reasons for selecting certain candidates and rejecting others, as well as addressing concerns raised during the selection process.
  • Transparency would not only bolster accountability but also deter frivolous challenges to the Collegium’s decisions.
• Independent Oversight Mechanism
  • Establishing an independent body to oversee the implementation of Collegium recommendations and address disputes between the judiciary and the executive could improve accountability without compromising independence.
  • Such a body could act as a mediator, ensuring that the judicial appointment process adheres to constitutional principles while resolving conflicts collaboratively.

The Way Forward to Ensure the Success of the Reforms

• Comprehensive Consultations: Engaging stakeholders, including senior judges, legal experts, and civil society, in drafting codified rules to ensure inclusivity and legitimacy.
• Capacity Building: Strengthening administrative infrastructure to handle the additional demands of a reformed appointment process.
• Enforcement Mechanisms: Introducing legal provisions to penalize non-compliance with timelines or procedural lapses by the executive.
• Periodic Reviews: Conducting regular assessments of the Collegium’s functioning to identify and address emerging challenges.

Conclusion

• Post the NJAC judgment, the Collegium System continues to be the method for appointing judges to the higher judiciary.
• The Collegium system, despite its flaws, represents an effort to preserve the judiciary’s independence.
• However, its survival and efficacy depend on meaningful reforms that address both structural and procedural deficiencies.