Answer:
The collegium system must not see itself as being above the safeguards and measures for transparency, accountability and demographic representation that apply to India’s pillars of democracy.
In September 2019, Chief Justice of Madras High Court Vijaya Kamlesh Tahilramani resigned after the collegium upheld their decision to transfer her to the high court of Meghalaya (one of the smallest in the country). Justice Tahilramani was the senior-most high-court judge in the country. The members of the bar associations across Tamil Nadu protested against this move and carried “a one-day court boycott.” In addition, in Maharashtra's Latur, about 2,000 lawyers boycotted court proceedings to protest the transfer. The collegium responded by saying that they have “cogent reasons” for the transfer, and will reveal them if required.
At the heart of this controversy is the functioning of the collegium system, which makes decisions about appointments and transfers in the higher judiciary. In February 2020, former Supreme Court judge and member of the collegium from 2018–2019, Arjan Kumar Sikri, said that far from a “scientific study” about candidates, “most times, we [the collegium] go by “our impression” when appointing judges [to high courts and the Supreme Court].”
The collegium system is headed by the Chief Justice of India (CJI) and four senior-most judges of the Supreme Court. India’s Constitution originally stipulated that the judges of the Supreme Court and high courts would be appointed by the President based on a process of “consultation” with senior judges. The present collegium system emerged later based on three key rulings. In 1981, the “First Judges Case” ruled that the process of consultation with the CJI and other judges did not require a consensus about recommendations. Essentially, the ruling gave the central government “primacy in judicial appointments.” In 1993, the “Second Judges Case” overturned this decision and introduced the collegium system, arguing that “consultation” required “concurrence.” Specifically, the ruling said that the process of appointing judges would be based on “an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court” and the CJI. In 1998, the “Third Judges Case” ruled that the collegium would be a five-member body, establishing the system that is most similar to the one currently being followed.
This reading list details how the current system can be reformed.
Opaque and Unaccountable System
C Raj Kumar writes that the lack of information about the appointment of judges, including the criteria based on which the judges make their choice, is “the most persuasive criticism of the collegium system.”
Without a transparent process of the appointment of judges, the collegium system will not have the credibility and the legitimacy for it to be accepted by all stakeholders within the legal system. Transparency will not be established merely by stating that the members of the collegium will act in a transparent manner. It will have to be demonstrated by the process that the judiciary adopts in the selection of judges.
The lack of transparency and the absence of formal criteria have multiple worrying implications. Presently, there is no structured process to investigate if a judge who is recommended by the collegium has any conflict of interests. This is important in the context where the
… collegium has been fraught with serious allegations of different types of alleged conflict of interest among the members of the collegium and the individuals they have selected to become judges of the High Courts and the Supreme Court. There is an urgent need for the collegium to formulate a detailed set of rules and regulations that will govern the determination of conflict of interest among the members of the collegium who are involved in the selection of judges.
Social Background of Judges
Alok Prasanna Kumar identifies that the collegium system prefers practising lawyers rather than appointing and promoting “judges of the subordinate judiciary,” which often comprises a diverse pool of candidates.
