Collegium, Commission and the Truth

SINCE THE ALLEGED DISCOVERY of sacks of burnt currency at the official residence of Justice Yashwant Varma, a former judge of the Delhi High Court last month, the Union government has rather swiftly re-ignited a long pressing demand to establish a National Judicial Appointments Commission for appointment of judges to India’s higher courts. Previously brought in through the 99th Constitutional Amendment, the NJAC was proposed to be a committee of six members consisting of the Chief Justice of India, the two senior-most judges of the Supreme Court, the Union Law Minister and two “eminent” persons nominated by a committee comprising the CJI, Prime Minister and the Leader of Opposition. Any two members of the NJAC could veto a recommendation. 

In 2015, a five-judge Constitution Bench had struck down the amendment noting that it compromised the independence of the judiciary and thus, violated the basic structure of the Constitution. On March 21, Vice President and Rajya Sabha Chairman Jagdeep Dhankar loudly stated that the NJAC Act dealt with the “malaise very severely”. ““If the malaise had been dealt with, perhaps we would not have countenanced such kind of issues,” Dhankar had stated.

As these reiterations surrounding the NJAC have now reached a fever pitch, with even opposition leaders expressing disavowal of the existing Collegium system of appointments, where the Chief Justice of India and senior judges of the Supreme Court and High Courts decide judicial appointments, it is important that we clearly understand the critical problems with the proposed NJAC model, the primary issues with the existing Collegium system, as well as the potential solutions that may be available to us.

To put it bluntly, the NJAC system, as had been proposed, cannot be the way out simply due to the reason that it provides disproportionate discretion to the executive on appointments. Since there would be no transparency in the selection of the nominees, there was an understandable concern that the veto arrangement would ultimately allow the Union to have a final say over appointments.

At the same time, the Collegium is in dire need of reform. A leading reason for this is the evident opacity in the Collegium’s functioning, and by extension, in how judges are appointed. Only as recently as October 2017, did the Collegium begin the practice of publishing its resolutions on the Supreme Court website. Even then, for a substantial time, the resolutions did not satisfactorily articulate what kind of factors were being considered for selecting a High Court judge to be elevated to the Supreme Court, or a lawyer or district judge being elevated to a High Court, or even as to why a judge or Chief Justice was being transferred from one Court to another. For instance, when Justice Varma, the High Court judge being alleged of corruption at the moment, was transferred from his parent High Court in Allahabad to the Delhi High Court in 2021, the Collegium had not mentioned any reasoning as to why this particular decision had been taken. While over the last two years, the resolutions became slightly more detailed in terms of revealing the social background and qualifications of candidates being elevated, under the current Chief Justice of India, unfortunately, the resolutions have become more terse. 

Equally concerning has been the opacity with which in-house inquiries are conducted. Certainly the Chief Justice’s decision to make public on March 22 the documents, photographs and video pertaining to the alleged discovery of currency at Justice Varma’s residence is a step in the right direction. We also welcome the Chief Justice’s decision to make public that a three-member inquiry committee consisting himself and two High Court judges has been formed in pursuance. However, a lot more needs to be done to make both the Collegium’s overall functioning and the Court’s in-house inquiry process more transparent. Consider for instance, that between 2017 and 2021, over 1600 complaints about judicial misconduct were forwarded to the Chief Justice of India and High Courts and yet there is no information about what happened to these complaints. Despite three months passing since a sitting judge of the Allahabad High Court, Justice Shekhar Kumar Yadav, delivering a hate-speech targeting Muslims of which a video clip exists, there is no communication from the Collegium regarding whether an in-house inquiry was set up against him. Important to highlight, at this juncture, is that one way to streamline this internal disciplinary mechanism and make it more transparent is by reviving discussions, not around the NJAC Act but the Judicial Standards and Accountability Bill, 2010. That bill, which lapsed in the 16th Lok Sabha shortly after the 2014 general elections, encoded specific minor measures that could be taken against erring judges, including removal, a process much smoother than impeachment, and even mandated judges to publicly declare their assets. How the JSA Bill has been systematically ignored in favour of NJAC is also telling.