The greatest enemy of India's judiciary isn't the government but its own secretive system

The real challenge facing the Indian judiciary in its attempt to salvage the Collegium system – which ensures its independence by giving it primacy in appointment of judges – is not its conflict with executive but its resistance to change. While the Collegium survived the executive-judiciary conflict with the Supreme Court quashing the law constituting the National Judicial Appointments Commission , the judiciary is yet to deal with the criticism over lack of transparency and accountability which had shaken the confidence of people in the judge-led system of appointment of judges.

Though a Constitution bench of the Supreme Court by a 4:1 majority last year thwarted the attempt by the executive to wrest back power of appointment of judges, the outburst in the lone dissenting judgment by Justice J Chelameswar against the secretive manner in which judges selected judges discredited the 1993 Collegium system, forcing the bench to consider and issue directions for reform.

The NJAC judgment, in my opinion, marked a decisive end to the executive-judiciary conflict. The challenge before the judiciary now is to restore the trust of people in the system by overhauling the Collegium system.

Given the resistance to reform, the conflict is within the judiciary. And it came to the fore recently when Justice Chelameswar (the junior-most judge in the five-member Collegium) went public with his decision to boycott meetings of the Collegium over lack of transparency and accountability. He had strong reservations on the secretive manner of appointments with even minutes of the Collegium meetings not being recorded.

This was not the first time a member of the Collegium had spoken up. Justice Ruma Pal, who retired as number 2 in the hierarchy, had talked about the proceedings in a lecture after her retirement.

“Consensus within the Collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.” 

On account of delay in appointments, failure to appoint good judges and lack of transparency and accountability, the process of appointment came in for severe criticism but the judiciary continued to resist reform.

Seizing upon the opportunity, the executive initiated the process for creating a statutory framework – National Judicial Commission Act – for appointment of judges to the Supreme Court and high courts to ensure its role in appointment which it had lost with the constitution of Collegium through a judicial order in 1993. This gave impetus to the executive-judiciary conflict as the NJAC primarily sought to take away primacy in appointment from the judiciary.

NJAC was not a solution but a new problem. Riding the bandwagon of public opinion against the Collegium, the executive came up with the NJAC Act which focused primarily on ‘who’ selected judges (without much promise on transparency and accountability) while the Collegium system was under attack for the manner – how – in which appointments were made.

The Supreme Court rightly quashed NJAC to preserve independence of the judiciary but the backdrop in which the executive had intervened remains the same. The faith of the people in the Collegium system is yet to be restored.

Resisting reform

The judiciary may be riding against public opinion by resisting reform. The secretive procedure for selection and appointments has lost confidence of the people, more particularly on account of the perception built up over the years with undeserving people being appointed as judges, deserving being ignored when it came to elevation to the Supreme Court and continued resistance to reform to usher in transparency and accountability.

In this backdrop, it is the judiciary which is to blame for not reforming the procedure on its own. On amendment to the Memorandum of Procedure governing the procedure for selection and appointment of judges, the judiciary, if not more, is being seen as equally responsible with the executive for delay in finalisation of the new Memorandum of Procedure – the draft which is aimed at ushering in transparency is ironically not placed in the public domain. Though some fears may be justified, there is no reason for the judiciary to oppose procedural changes (even if it was for involving people other than judges in the selection/shortlisting process) as long as judges (read Collegium) had final say in appointment.

Justice Chelameswar’s boycott only shows that resistance to reform from within the judiciary continues. On differences among judges coming to the fore, noted jurist and senior counsel Fali S Nariman, in a column published in the Indian Express, warned that such incidents only allowed interference by the executive.

“That governments in power simply rejoice and even attempt to step in whenever there are dissensions amongst members of the higher judiciary…”

Nariman is right. But the real threat may not be judges losing primacy as it has been held and reiterated by the Supreme Court that taking away primacy may hit upon independence of the judiciary, which is a basic feature of the constitution.

The threat lies elsewhere. The judiciary will find it difficult to continue with the Collegium system for long in the face of public opinion against it.

It should not be forgotten that executive was in the driver’s seat before 1993. Though judiciary took over by constituting the Collegium through a judicial order (in the Supreme Court Advocates-on-Record Association or SCAOR case which is also known as the Second Judges Case), public opinion had already discredited the pre-1993 system and the executive was finding it difficult to hold on to the power in the face of adverse public opinion.

In 1990 while the second judges case was pending consideration before the Supreme Court, the Centre on its own had decided to give up in favour of the judiciary "to obviate the criticism of arbitrariness" on part of the executive. The then law minister Dinesh Goswami introduced a Constitution Amendment Bill to provide for the constitution of a National Judicial Commission comprising the Chief Justice of India and two senior judges for appointment of judges to the Supreme Court.

Though the Bill lapsed with the dissolution of the Lok Sabha, the 1993 judgment introduced a scheme (now known as the Collegium system) similar to the one proposed by the executive.

The Object and Reasons appended to the 1990 Bill only reflected the strong public opinion built over the years against executive selecting judges. People had witnessed executive trampling upon judicial independence by superseding inconvenient judges (in 1973 and 1977) while appointing Chief Justice of India and transferring High Court judges against their will.

Justice Chelameswar’s decision has caused an embarrassment to the judiciary. But his silence could have been more damaging for the judiciary – which failed to see the writing on the wall – than his open dissent.