Whether Collegium System Has Come A Full Circle?

Nine judges at a time taking oath as Supreme Court judges would be a rare sight, may be a one-time affair in the history of the Supreme Court of India. This number has surpassed the total number of eight judges we had at the beginning of the Supreme Court in the Independent India.

Article 124(1) of the Constitution prescribed that the Supreme Court shall comprise of a Chief Justice of India and not more than seven other judges. The maximum number of judges could be increased by Parliament by law. Accordingly, the Supreme Court (Number of Judges) Act, 1956 provided for a maximum of eleven judges. Thereafter this number was increased to 13 in 1960; to 17 in 1977; to 25 in 1986, and to 30 in 2009. Though the maximum number of judges was raised to 33 in 2019, the total number of judges other than the CJI, continued as 25; the vacancies remained unfilled until the recent notification. With the appointment of nine judges, we will have 33 judges including the CJI, leaving one vacancy.

The number grew from seven to thirty-three since 1950. Yet, the representation of women, Dalits and minorities remained merely nominal. Any assertion for adequate representation of Dalit, minority and women in the higher judiciary, is not a clamor for reservation in appointments. Rather it is a reminder, a cause for introspection. Unfortunately, there is/was a no conscious effort on the High Court's collegium to identify appropriate candidates from weaker sections and appoint them as judges. It isn't possible that there are no suitable candidates in these categories. Very few collegium members had taken proactive measures to appoint persons from this marginalized sect as judges in the High Court. Interestingly, those Dalit, minority, and women judges in the collegium also believed that they should not actively push for the sub-sect they belong to. They were sufficiently cautious about their public image, and deliberately disassociated from the much-needed affirmative actions.

A look at the South African constitution is a good pointer at the rationale behind ensuring representation of the marginalized sections in the constitutional courts. Section 174 of the South African constitution deals with Appointment of judicial officers. Section 174 (2) requires that "The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed".

The dearth of such an explicit provision in our Constitution, does not mean that it was not meant to be. The spirit of the egalitarian Constitution that we have, cast an overwhelming halo of justness and fairness that cannot be shed off in judicial appointments as well. But this unwritten understanding hardly reflected in the appointments. In a country where largest number of Muslims in the world reside, amounting to around 15% of the country's population, the number of Supreme Court judges from the said community, is just one at present. Also, none expects that judges who from minority, dalit or woman categories should act only in furtherance of the interests of the sect to which they belong; such expectation itself is illegal and unconstitutional. What is important in such representation in appointments is the message being sent out to the citizens that there is regard for plurality and an inclusive system in place.

Another factor which plays a significant role in appointment of judges is their social philosophy. As in the USA, we don't have Republican judge or Democratic judge, suggesting the ideological lenience of a judge. In India, it is traced from their judgments, speeches, or their association with certain organizations.

The government had played a major role in the appointment of judges until the dawn of the collegium system. During pre-collegium days, it was the prerogative of the executive to appoint judges of their choice. In the early days of the collegium system, the satisfaction of collegium members, and an Intelligence Bureau (IB) clearance was enough to get the appointments through. After 28 years of collegium system, it appears to have come a full circle. The primary concern of the collegium of these days has become the apprehension about satisfaction of the government about the name being recommended. The selective approval and disapproval of names by the central government, purposeful delays in approving the recommendations with the sole intention to avoid the seniority of the recommended, and even brazen attitude of the government in sending the reiterated names back to the collegium have in effect conditioned the collegium members to send only those names palatable to the Government. It is ironic that the collegium that was created by judicial interpretation with the sole purpose of excluding executive interference in appointment of judges to strengthen judicial independence, has turned out to be a body acting in consonance with the executive will.

In this context, the act of the collegium recommending nine names immediately after the retirement of Justice RF Nariman, who was part of collegium, and the government approval to the recommendation within no time, seems to be along scripted lines. Since one of the appointees was retiring from the High Court on 01.09.2021, it was important to get the names cleared prior to the said date. It was surprising that a collegium which could not arrive at a consensus for almost two years, did so in a lightning speed, just after retirement of Justice Nariman and agreed on the nine names. The government also equally rose to the expectations of collegium.

Another practice developed by the government and obediently accepted by the collegium was the segregation of names. That is, the government started selectively approving only one or some of the names and held back the other names, recommended. Earlier on, there was no such system of approval of some names and holding back of other names.

The selective approval was institutionalised in the case of recommendation of Senior Advocate Gopal Subramaniam. His name was segregated and not approved along with other recommended names. Feeling insulted, Mr. Gopal Subramaniam withdrew his consent to be a Judge in the apex court. A similar situation also arose in the case of a sitting judge of the Supreme Court, who was then the Chief Justice of a High Court. The government for the reasons best known to it, segregated the name of that judge and delayed the appointment. It is to be noted that, a delay in appointment to High Court or Supreme Court would mean that a judge's seniority or tenure gets sabotaged.

The present instance of recommendation of nine names by the collegium and a quick approval by the Centre, without any segregation or sitting over it, is a positive development. However, transparency is a causality, that prejudices public trust in the very process. What had transpired in the collegium meetings and discussions is closed but to its members. On October 03, 2017, the collegium had passed a resolution deciding to upload on the Supreme Court website, its decisions with reasons and materials considered for recommendation regarding each candidate.

However, in course of time, transparency got back seat, with the collegium stopping the practice of publishing reasons in 2019. The recent recommendation of August 17, 2021, for e.g., contains just a list of the nine names, numbered.

A meritorious and senior judge like Justice Akil Kureshi who had been overlooked so brazenly even for appointment as the Chief Justice of a High Court, did not find a place in the recommendations. Nobody even knows whether any discussion of his name took place in the collegium meetings. As stated earlier, the collegium has come a full circle.

What if the collegium were to put its foot down and hold on to its recommendations? As per the present constitutional scheme, the Government is bound to agree. Then why do we have exclusions like Justice Kureshi. The answer to this question lies with the collegium. And its silence speaks for itself.

When you have an assertive and authoritarian executive, it is for the judiciary to rise to protect the institutional integrity. All governments tend to push for their people inside judiciary, who share the same ideology. It has always been a practice in India, since the totalitarian regime of Indira Gandhi, to create a committed judiciary. We have seen pliable judges, and also bold judges who stood against the brutal imposition of emergency. The governments, particularly the ones which show the totalitarian attitude, are not expected to follow the constitutional morality. It is for the custodians of the Constitution to stand up and protect it.

Collegium recommendations have become an indicator for independent judiciary. An imminent test for the present collegium of the Supreme Court is the return of the names of 14 advocates, including three women advocates, that were recommended by the Collegium for appointment as judges to five different high courts. Apparently, these recommendations had been pending with the government for more than a year. Two names out of 14 have been returned even after reiteration by the collegium. A testing time again.

(PV Dinesh is an Advocate practicing at the Supreme Court of India)