How to make the Collegium more transparent? Former judges, experts talk in near unison

Seminar on Judicial Appointments And Reforms: Part 2

Former Supreme Court judges Justices Madan B. Lokur and Deepa Gupta, former high court Chief Justice A.P. Shah, senior advocate R. Vaigai, lawyer and human rights activist Vrinda Grover, and academic Prof. C. Raj Kumar spoke in a panel discussion on the subject of making the Supreme Court Collegium more transparent and accountable.

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HOW transparent is the process of appointments to the higher judiciary in India? How can the accountability of not only the executive, but also the Supreme Court and high court collegiums, be ensured? What is to be made of the Union government’s diatribes against the judiciary? How to ensure that diverse representation on the Bench?

The above questions were answered from various perspectives on Saturday during a session of the seminar on ‘Judicial Appointments And Reforms’, organised at the Indian Society of International Law in Delhi by the Campaign for Judicial Accountability and Reforms.

The panel at the session, titled, ‘Building a transparent and accountable collegium’ included former Supreme Court judges Justices Madan Lokur and Deepak Gupta, former Madras High Court and Delhi High Court Chief Justice Ajit Prakash Shah, senior advocate R. Vaigai, human rights lawyers and researcher Vrindra Grover, and Dean of Jindal Global Law School, Prof. C. Raj Kumar.

Justice Shah: Collegium basically appointing more people like themselves

Justice Shah, who previously served as a judge at the Bombay High Court as well as the Chairperson of the 20th Law Commission of India, in his address raised questions over the informal manner in which the Supreme Court Collegium conducts its business, which, in his view, allows for biases of nepotism and favouritism to creep in. 

To Justice Shah, the appointment of Justice L.C. Victoria Gowri to the Madras High Court is a “prime example” of what can happen when the process of collegium collapses. “She embodied hate speech at its height. I personally watched her videos and I was terribly shocked.”

Elaborating on why he believes the Collegium to be an undemocratic mechanism, Justice Shah said that the informality and non-transparency in its dealings, and the non-recording (or non-publication) of minutes of the meetings leads to bias being reflected in the collegium’s recommendations. 

There is hardly any investigation” of the candidates, and their body of work, standing and integrity, he said, and gave the example of the appointment of Justice Gowri to the Madras High Court despite her previous comments against religious minorities and her former association with the Bharatiya Janata Party.

The problem with the collegium is that they operate with a high degree of bias… It is the same degree of bias that has remained unchanged… To put it another way, the rituals are the same; only the priests have changed,” said Justice Shah.

Nepotism and favouritism, which he identified as the roots of bias in this context, encourage self-replication by the judiciary and prevent diversity on the bench. “The fact is that many judges are related to former judges… Consequently, the system comprises judges mainly from the upper caste and the middle class… Effectively, the members of the collegium are basically appointing more people like themselves. So, every successive collegium is practically a mirror of its predecessor.

On executive interference in the appointment process, he stated that the present party heading the Union government “has infiltrated the collegium system” and aired his opposition to an earlier suggestion in the inaugural session of the seminar by academic and legal scholar Dr. Faizan Mustafa that the Union Minister for Law and Justice could be made a part of the collegium’s discussions.

In Justice Shah’s view, the present trend is to encourage the appointment of individuals who share the same ideology as that of the party heading the government, reinforcing what senior advocates Dushyant Dave and Dr. Aditya Sondhi had stated in the inaugural session.

He said, “On one hand, the government is interfering by obstructing appointments, sitting on files, manipulating the system, and on the other, in public forums, the Law Minister and the Vice President attack the collegium system.

To make the existing collegium system more transparent, Justice Shah proposed the publication of the names of the recommended judges and the minutes of the collegium meetings to be recorded, and for all meetings to be formal and minuted. He clarified that some confidential information may be redacted for the public. He was open to the suggestion that recommendations may originate from the government, but said that the same should be indicated in the minutes of the meeting. His final suggestion was that the high court and Supreme Court collegiums should have a separate Secretariat.

Justice Lokur: Government responsible for stalling recommendations

Justice Lokur, who currently serves at the Supreme Court of Fiji, called for greater executive accountability on the names recommended by the collegium, stating that it is time for the Union government “to be held accountable for sitting over files, sending back names without citing reasons, and stalling the process of appointment of judges to constitutional courts.”

The accountability, he said, extends to the discretion exercised by the Union government in segregating recommendations. “When three names were sent in one recommendation, the Central government segregated the files — kept one file aside and appointed the other two judges,” he said without taking any names, noting further that this practice was found to be unacceptable by the then Chief Justice of India, Justice R.M. Lodha as the segregation has an impact on the seniority of judges.

On the government practising a ‘pocket-veto’ on certain names, Justice Lokur cited the example of Saurabh Kirpal, whose name was recently reiterated by the collegium, brushing aside the Union government’s objection over Kirpal’s elevation on the ground of his sexual orientation and the fact that his partner is a Swiss national.While this to and fro is going on, 18 people have become senior to him. Why? Because the government is sitting over his file,” said Justice Lokur.

Noting how people in the Bar are almost immediately in the know on the names recommended by a high court collegium, Lokur opined that “no purpose is served” by not disclosing these names officially; on the contrary, the filtering process might benefit from inviting the Bar and other stakeholders to provide inputs.

On the collegium’s decision to make public the inputs received from the Intelligence Bureau and the Research & Analysis Wing regarding the candidates recommended for judgeship, Justice Lokur said he sees “nothing wrong in that”. “The present collegium has taken a progressive step and I hope it continues despite what the Law Minister has to say.”

The Union government is supposed to give detailed information on what has been collected by the investigation agencies, the high court and other sources, he said. “No information should be withheld from the collegium. The collegium should be in a position to take an informed decision.” 

Stating that the rule on reiteration of names is clear and that once a name is reiterated by the collegium, the government has no option but to appoint the individual, he said, “However, in reality appointments are still not made after the third reiteration.” He added that in multiple cases, a recommendation has been reiterated twice, and even thrice in one instance.

Towards the end of his address, Justice Lokur suggested the collegium open up files from the past to make public the names of persons who were recommended but not appointed. “Time has come to open up the files. Recommendations made in 1990, first half of 2000, why not open up those files? So that we know…what is the national secret behind keeping those files in a closet.

Justice Gupta: For a Muslim to get appointed, its takes a year

Justice Gupta, whose tenure at the Supreme Court lasted from 2017 till 2020, aired his belief that post-retirement benefits and postings impede the independence of the judiciary, and highlighted the importance of independent judges “who have the spine to stand up for themselves and to protect the Constitution of India.

There should not be any post-retirement benefits. We cannot have an independent judiciary with such benefits. If judges on the verge of retirement throng corridors of power to look for after-retirement crumbs, then what justice can be expected.”

Like Justice Shah, Justice Gupta also batted for a diverse composition for the higher judiciary. “…if the Supreme Court was packed with liberal judges that would also be a very sad day. It has to be a blend of all.

Justice Gupta had two suggestions to make. First, a common retirement age for judges of all Constitutional courts; this is currently 63 years of age for high court judges and 65 years of age for the Supreme Court judges. Second, the abolition of post-retirement benefits for judges.

If you do not appoint the right judges in the high courts, how will you get the better judges in the Supreme Court?” asked Justice Gupta.

Stating that these days high court chief justices hold office for only three or four months, Justice Gupta said that it is not enough time to be able to evaluate the capabilities of the local judges within the jurisdiction of the respective high courts. More often than not, the three senior most judges of a high court, who are members of the collegium, are judges who have been transferred from another high court and have short tenures. 

Justice Gupta was of the opinion that it would be beneficial to have at least one judge in the high court collegium with local knowledge.

Flagging the issue of judges from smaller high courts rarely getting the opportunity to serve at the Supreme Court, Justice Gupta said, “Small high courts are ignored … because there is no one from these high courts that are sitting in the Supreme Court.” One way to ensure that recommendations from smaller high courts are not ignored is to take up the files as they come, otherwise, the seniority of the judges would be affected.

Justice Gupta disclosed how the religion of candidates influences the time frame for consideration of their names by the government, stating that it usually takes around a 100 days for a recommendation to be approved by the government, but 266 days if the candidate is Christian and more than 350 days if they are Muslim. To be sure, these are numbers which Justice Gupta admitted weren’t verified, but he believed to be true.

If these figures are correct and I believe them to be correct, it is a very dangerous trend. So, you are making sure that [those from minority communities] never become senior judges, [chief justices] and never reach the Supreme Court. This (data) should be in the public domain, so that we can ask questions.”

Vaigai: The bar must not remain silent

Vaigai, a senior advocate at the Madras High Court, stated that continuous attempts are being made by the Union government to target the judiciary to undermine its independence, particularly highlighting the public attacks by the Union Law and Justice Minister, and the Vice President.

The utterances of the Vice President questioning the basic structure theory, and the various utterances of the Law Minister and the consistent actions of the government of stalling appointments and transfers… These are all consecutive statements made with a common thread. They attempt to target and weaken the judiciary.” 

While admitting that she has qualms about the collegium system for not being democratic enough, “but today in the context of a direct assault on judiciary, I feel that we have to strengthen the collegium system. The only method by which we can strengthen the collegium system is by making it transparent,” she said.

Vaigai also expressed disappointment that bar associations were not opposing attacks that seek to undermine the judiciary, similar to Dave’s assertions during his address. “Unfortunately, 70 per cent of the judges’ vacancies are filled from the members of the Bar. Why (else) do you think there is no opposition from the Bar Associations to the various speeches made by the Law Minister attacking the judiciary?” The Bar Associations, she added, are also silent about the delays in approving judicial appointments and refusing to appoint persons on extraneous grounds.

If Bar Associations do not act in an independent manner, then the future of the judiciary is grim,” she opined, warning of a situation where only ‘yes men’ would get appointed — “individuals who would not be hesitant to be part of the majoritarian agenda”.

Noting from her years of anecdotal evidence gathered at the Bar, Vaigai stated that the custom of the Madras High Court is that if an individual becomes the Secretary /Executive Secretary of the Madras Bar Association, then their next post is that of a judge of the Madras High Court. “Such is the power that the Association holds in the appointment of judges at the high court,” she noted.

Referring to the controversial appointment of Justice Victoria Gowri to the Madras High Court, Vaigai noted that the Chief Justice of India had disclosed in open court that certain material was not made available to the Supreme Court Collegium when they made the recommendation for her appointment. Vaigai was a co-author of a letter sent to the Supreme Court Collegium and the President before Justice Gowri’s appointment was confirmed.

In their letters, some members of the Madras High Court Bar asserted that Justice Gowri’s regressive views are completely antithetical to foundational Constitutional values and reflect her deep-rooted religious bigotry, making her unfit to be appointed as a high court judge.

On February 7, the Supreme Court dismissed petitions challenging her appointment.

As per Vaigai, “The [Intelligence Bureau] also does not try to serve the judiciary, but they are serving the government. There has to be an independent machinery for verification. There has to be a dedicated Secretariat, dedicated staff and an intelligence wing for the Collegium to function satisfactorily.

Vaigai also contended that selection of judges by the collegium is an administrative action and therefore cannot be beyond the scope of judicial review.

Grover: People don’t see a reflection of themselves on the Bench

Grover, an advocate and human rights activist, said that representation is a matter of right, and the collegium does not appear to be inclined to ensure diversity of thought and different viewpoints. 

I think it is important that in this whole exercise of accountability, we need to stop talking of diversity and representation as a side issue. It needs to be the central focus if the collegium wishes to get actual legitimacy in the role that it performs.

Grover argued for a deeper study into the diversity of thought displayed in a potential candidate’s work and judgments to see what interpretation of the Constitution they may bring to the Bench. “This exercise is not being undertaken at all,” she contended. 

The independence of the judiciary as it is practised today ensures that only those belonging to a particular class, caste and sex are appointed to the Bench, she contended. Rupturing  this is desperately required as presently “people do not see a reflection of themselves” in the judiciary, she averred.

Prof. Raj Kumar: Collegium should have one female judge always

Prof. Raj Kumar, founding Vice-Chancellor, O.P. Jindal Global University, began his address by quoting Dr.  B.R. Ambedkar, “However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.”

Prof. Raj Kumar contended that perhaps a disproportionate emphasis is given to the idea of constitutionalism, but “it is equally important for us to stress on the kind of individuals” that may be fit for the Bench.

On the lack of diversity on the Bench, he stated that is a serious challenge and it “imposes on the credibility of the judiciary”, highlighting the lack of gender diversity in the higher judiciary, in particular.

On the functioning of the current system of collegium and ways to improve it, Prof. Raj Kumar pointed out that “all political parties” had supported the National Judicial Appointments Commission Act in 2014. 

He posited that there is a structural flaw in the institutional mechanism of the collegium that impedes transparency in its functioning.

He suggested that the collegium should have at least one female judge as a member at all times, regardless of seniority, and tangible efforts should be undertaken to promote women judges in high courts to become chief justices of other high courts.

He also suggested that the existing criteria for examining candidates older than a certain age should be relaxed so that more women lawyers could be appointed as judges of high courts. The Chief Justice of India should establish a task force to promote gender diversity in the judiciary with  half of its members being women judges, lawyers and academics. 

As a sub-point, law schools across the country should also make efforts to create a more gender-diverse student body and faculty, he said.

He recommended that for the determination of conflict of interest amongst the members of the collegium, there is an urgent need for the collegium to formulate a detailed set of rules and regulations.

The future of the collegium as a system would depend upon the ability of the CJ and the judges to formulate transparent standards of selection process and to actually put more information out in the public domain,” he concluded.

Read Part 1 here.

(With inputs from Parishti Kaushik, a student at Gujarat National Law University and an intern with The Leaflet)

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