At heart of Jagan Reddy vs Justice Ramana battle is India’s collegium system for picking judges

On Saturday, Andhra Pradesh government released a letter written by Chief Minister Jagan Mohan Reddy to Chief Justice of India SA Bobde that made serious allegations against the second senior-most judge of the Supreme Court NV Ramana.

Justice Ramana is next in line to become the Chief Justice of India.

The letter, apart from going in detail into a land deal in the the building of the state capital Amaravati – in which a former advocate general of the state and family members of Justice Ramana have been accused – also alleged that the Supreme Court judge was interfering in the affairs of the Andhra Pradesh High Court in favour of former Chief Minister Chandrababu Naidu.

The veracity of these allegations are still unverified. Scroll.in will desist from reporting on the contents of the FIR related to the land deal as a gag order by the Andhra Pradesh High Court issued in September against media coverage of the case is still in force.

However, the fight between Jagan Reddy and Justice Ramana raises serious questions over the system that has led to such a confrontation between two constitutional authorities, something that is unprecedented.

Former judges of High Courts said while an in-house inquiry into the allegations made by the chief minister could reveal if there was any truth to them, the fact was that a person who is elevated to the Supreme Court holds great power and influence over appointments to his or her parent High Court and in consequence on the functioning of the High Court itself.

Collegium system

In India, judges appoint other judges. This process was evolved through the 1980s and 1990s in what is now together called the three judges cases.

The collegium system – in which a panel of sitting judges decides on judicial appointments – was a result of the excesses of the the Indira Gandhi government before and during the Emergency in the 1970s, when the Centre interfered in judicial appointments and even stopped judges from becoming chief justices. Subsequent Supreme Court judgments severely curtailed the role of the executive in the appointments, to the extent that if the collegium reiterates a recommendation, the Centre has no option but to forward it to the President for his approval.

In the collegium system, the five senior-most judges of the Supreme Court decide who to appoint as a Supreme Court judge. In the case of High Courts, a collegium of the three senior-most Supreme Court judges take a call on recommendations made by the collegium of the High Court.

The recommendation of a name for the position of a High Court judge is usually done by the chief justice of the High Court. However, according to the memorandum of procedures for appointment to the High Courts, a chief minister can also recommend names for elevation to the High Court.

In the end, the Supreme Court collegium of three judges, including the chief justice of India, will decide on the recommendations forwarded to it.

However, the procedures also state that the collegium can take the opinion of judges in the Supreme Court who are familiar with the affairs of the particular High Court. The procedure says:

“The Chief Justice of India and the collegium of two Judges of the Supreme Court would take into account the views of the Chief Justice of the High Court and of those Judges of the High Court who have been consulted by the Chief Justice as well as views of those Judges in the Supreme Court who are conversant with the affairs of that High Court. It is of no consequence whether that High Court is their parent High Court or they have functioned in that High Court on transfer.”  

This process of consulting a judge conversant with the affairs of the particular High Court is not in the Constitution, but was developed as a process by the Supreme Court itself.

This, former judges said, makes any judge elevated to the Supreme Court highly influential in the High Court from which they hail.

It is this process that can be looked at as a contributory factor to controversies such as the one currently playing out between Jagan Reddy and Justice Ramana.

Influence on appointments

Former Madras High Court judge K Chandru said a Supreme Court judge has the power to make or break an appointment to a High Court. And given that Supreme Court judges are also humans, they come with prejudices and may not always be strictly objective.

“The High Court collegium may spend months and painstakingly put together recommendations. But there is every possibility that all such effort would come to naught if the Supreme Court judge from the state says no to the recommendation.”

Chandru claimed that the process of consulting a Supreme Court judge familiar with the affairs of the particular High Court essentially undermines the position of the High Court collegium.

This, Chandru said, becomes even more drastic when the particular judge is part of the Supreme Court collegium itself. At the end of the day, Chandru said the opaqueness of the collegium process means that the public will never know why a particular name was accepted or rejected and what the opinion of the judge who hails from the particular state was on the recommendation.

“Imagine the power that a Supreme Court judge wields even when the judge is not part of the collegium. This is why many want an overhaul of the collegium system,” he added.

Chandru said given that a chair in the collegium is based on seniority, those in the system such as lawyers and judges know who would eventually land in the collegium and when. “It is not uncommon for one to witness sycophancy in the judiciary due to the way the system is structured.”

Chandru also claimed that sometimes chief justices of High Courts consult the concerned Supreme Court judge before sending the recommendation to the consideration of the collegium.

A former chief justice of a High Court said that there is an in-house procedure that is now in place to handle complaints against sitting Supreme Court and High Court judges. “The allegations made by the chief minister would have to be looked into by the in-house committee of judges,” the former judge said. Even assuming that the allegations are purely motivated by politics of Andhra Pradesh, the former judge said a complaint from a chief minister cannot be treated casually. “He is an elected leader and de facto head of the executive.”

The former chief justice said that if allegations of interference in the affairs of the High Court by a Supreme Court judge are to be avoided, the procedure that allows for consultation with the judge from that particular High Court should be done away with. The judge also added that judges in the collegium should recuse themselves whenever appointments to the High Court from their state comes up before the Supreme Court panel.