Varun Gandhi’s article: Collegium system needs to be reformed, what should be the correct way of appointing judges

Varun Gandhi

In February 1970, Swami Kesavananda Bharati, head of the Edneer Math in Kerala, filed a petition in the Supreme Court under Article 26 of the Constitution. It challenged the Kerala government’s efforts to impose restrictions on the management of the monastic property. Three years later, in this case, the Supreme Court, by a 7-6 majority, upheld the basic structural principle of the Constitution. In particular, the major principles of the Constitution and the limitation on the powers of the Parliament to amend its basic structure were underlined anew.

Changed stance in emergency

Interestingly, when the Emergency was declared, the Supreme Court was also inundated with new judges. A N Ray was appointed as the Chief Justice by the President. In this appointment, the seniority of three judges was set aside. Significantly, Ray did not sign the judgment in the Kesavananda case. The landmark judgment was revisited with a 13-judge bench headed by him. It also came to light that no review petition was actually filed. This review hearing was held only on an oral request. An apparently improper procedure was followed, wherein the Chief Justice ex-parte dissolved the bench. Despite the Center having a committed judiciary, the principle of the basic structure of the Constitution barely survived. This historic decision helped to strike a balance between autocracy and democracy in the country.

• Recently, there has been a tussle between the Center and the Judiciary over the interpretation of Articles 124(2) and 217(1) of the Constitution.
• Article 124(2) highlights that the appointment of a Judge of the Supreme Court shall be made by the President after consultation with the Judges of the Supreme Court (particularly the Chief Justice) and the High Courts of the States.
• Similarly for the High Courts, Article 217(1) states that the Judge of a High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court.
• At present, the Center can accept or reject the recommendations made by the collegium system, but if a recommendation is reiterated, the government is bound to accept it. Recently this consensus has turned into an impasse. The Center has put on hold the recommendations reiterated by the Collegium. This has affected appointments in the courts.
• In August 2022, there were three out of 34 vacancies for judges in the Supreme Court and 381 out of 1,108 in the high courts.
• Around 5,342 seats out of 24,631 were vacant in the lower courts, which is 20 per cent of its capacity.
• Postponing the restoration of such vacancies is bound to impact judicial efficiency, especially in the High Courts of Bombay, Punjab and Haryana, Calcutta, Patna and Rajasthan. Significantly, about four crore cases are pending in these courts.

Judicial appointments in other countries

In select countries, judges are appointed by political institutions. It would be appropriate to have a look at the prevalent system of judicial appointments in different countries.

• In Italy, appointments to the Constitutional Court are made by the president, the legislature, and the Supreme Court. There each unit is allowed to nominate five judges.
• Supreme Court justices in the US are nominated by the President (for life) and then confirmed by the Senate by a majority vote.
• The German Constitutional Court is appointed by the parliament. Each house receives four appointments to each court Senate, one with a supermajority vote (2/3). Naturally this can lead to a partisan judiciary.
• All judges in Iraq are graduates of a judicial institute. There all applicants undergo written and oral tests in addition to an interview with a panel of judges.
• The Secretariat of the Supreme Court in Japan controls lower-level judicial appointments, as well as their training and promotion.

Recently, the Center has insisted on conducting judicial appointments through a judicial commission. However, on October 16, 2015, the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act (2014) by a majority of 4:1. It was underlined that there is scope for making the collegium system more transparent, setting eligibility criteria for appointment of judges and debate whether a strong secretariat is needed for appointment of judges. Further improvements can be made in this matter.

• There is a clear need to have a new Court of Appeal beyond judicial appointments. We need a Federal Court of Appeal with branches in major metropolitan cities, as recommended by the Law Commission.
• The Supreme Court should be transformed into a constitutional court through a constitutional amendment. Doing so would mean fewer cases would be kept pending at the highest level.
• Along with this, there should also be a mandatory cooling off period for judges before being nominated for roles in government.

judicial independence

Judicial independence remains critical to the health of India’s democracy. Judicial independence requires a credible and fair system of appointment of judges. Judicial accountability of any appointment should be ensured. At the same time, a judiciary should be promoted that is independent of other branches of government at the individual and systemic level. Such a judicial system should be free from political ideology and public pressure and also from the hierarchy within it. There has already been a logical consensus that we should avoid a judiciary with a particular bias.

The author is a BJP MP