The Daily Fix: Karnataka HC judge’s resignation is a reminder of how opaque the collegium system is

The Big Story: Judging the judges

On Monday, the senior-most judge of the Karnataka High Court Jayant Patel resigned after the Supreme Court Collegium denied him the chance to be the Chief Justice of the Karnataka High Court. Instead, Patel was transferred to the Allahabad High Court where he would be the third senior-most judge.

This unusual move comes even as allegations of political interference swirl around the decision to deny Patel a promotion commensurate with his seniority. In 2011, Justice Patel, then with the Gujarat High court, had handed over the Ishrat Jahan murder case to the Central Bureau of Investigation. Patel had ruled that the Gujarat state police – then under Chief Minister Narendra Modi – had killed Jahan in a fake encounter.

Senior advocate Yatin Oza sounded an alarm bell on what this meant for the independence of the judiciary. “Spineless Collegium is acting as per the whims and caprice of the Government,” said Oza. “This will also be a signal to the judges to toe the line of the government.”

This incident is yet another urgent reminder of just how opaque and inscrutable the Collegiums system is. The Constitution, as envisaged by India’s founding fathers, created a system where the President would appoint judges after “consultation” – that would not be binding – with the Chief Justice of India.

In 1993, however, there was a judicial takeover of this appointment system and the Collegium system was created. Under this, five Supreme Court judges appointed other Supreme Court and High Court judges. There was practically no role for the Union government in this system.

This self-selection of judges is unique in the democratic world. In the United States, for example, democratically elected legislatures and executives – both at the state and federal level – have a role in appointing judges to the courts. This is a vital part of the checks and balances system of democratic government.

In India, this system of checks and balances has been broken. The judiciary – uniquely for any branch of government – appoints itself. To make matters worse, the Collegium operates in secret. Minutes of meetings are not recorded and all decisions are taken orally – which means there is no record of how and why judges are appointed.

Naturally, without any scrutiny, this system has led to allegations of impropriety. President of the Supreme Court Bar Association Dushyant Dave argues that the system does not work well for selecting judges. Judges with good potential are often rejected because of personal enmity with a judge on the collegium and bad candidates are not stopped. The closed circle that the Collegium engenders means that there are almost no promotions from India’s trial and district courts to the higher judiciary

This opaqueness is unusual given the immense power judges enjoy. The Collegium selects what is a branch of government. The higher judiciary is a crucial pillar in how the Indian state functions. If the selection of the legislature and executive are conducted under intense public scrutiny in a democracy, how can judges be selected arbitrarily? To prevent further cases like that of Jayant Patel, the Collegium needs to open itself up to public inspection.

The Big Scroll

• Justice Karnan is a standing monument to the failure of the collegium system, claims former judge in an interview to Sruthisagar Yamunan.
• The greatest enemy of India’s judiciary isn’t the government but its own secretive system, writes Gyanant Kumar Singh.
• NJAC ruling: The court has ignored the unanimous will of the Parliament, most of the state legislatures and the desire of the people for transparency in judicial appointments, argues Mohan Guruswamy.

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Punditry

• India’s imminent economic crisis: The authorities need to undertake meaningful structural reforms and loosen monetary and exchange rate policy, not go in for misguided fiscal expansion, argues Rajan Govil in the Mint.
• A year on, the surgical strike after the Uri attack has attained its political aim. However, its strategic goals are yet to be fully realised, argues Sushant Singh in the Indian Express.
• Human shield in Kashmir: In the Hindustan Times, Karan Thapar writes that the Indian Army let itself down.
• This year’s session of the UN General Assembly has confirmed the growing ineffectiveness of the world body, argues Suhasini Haidar in the Hindu.

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As BHU women protestors return to homes across Hindi heartland, parents are supportive but anxious, reports Shreya Roy Chowdhury.

While the university has seen protests by women students in the past, the scale and intensity of the recent protest was historic, said Chaubey. Families that may have otherwise hesitated to endorse marathon protests by young women were swayed by the molestation and lathicharge. They agreed their daughters’ cause for protest was just.

“This was the first time I protested in BHU and my parents are proud that I did,” said Himanshi Singh, who is studying a master’s degree in mass communication at Banaras Hindu University. Her father is a retired bank employee and her mother is a homemaker. Singh was unable to get back home to Aligarh after the university was shut. She stayed back with a friend, Shweta Gehlot in Varanasi. The daughter of a farmer and an anganwadi worker, Gehlot said she had the “full support” of her parents.

But, she added: “They did tell me to be careful.”