Q.1 The Collegium system has long been criticized for its unprincipled selection process and no accountability. What do you propose, an overhaul of the system itself or a greater transparency in the process of selection?

I am unclear as to what you mean by an “overhaul of the system” in this context, as there is currently no proposal on the table that one could meaningfully comment on. Constitutional discourse in India about judicial appointments has long been dominated by a contest for primacy: whether the executive or the Supreme Court should hold the ultimate authority in selecting judges. This is a fight for constitutional power because whoever controls the judiciary gets to ultimately control the Constitution and how it is interpreted.

Discussions on who should appoint the judges often sideline serious deliberations on how judges should be appointed. Likewise, discussions on what makes a judge fit or suitable for the role, and not who is fit or suitable to be a judge, are kept to a minimum. This is where transparency and accountability in appointments become paramount.

The criticisms you raise are entirely valid: the current system is notoriously opaque, with no public scrutiny. Collegium resolutions are cryptic and disingenuous. Recent controversies surrounding the appointments of Justices Victoria Gowri and Vipul Pancholi best reveal how autocratic Collegium can be.

Let us keep in mind that opacity somewhat benefits the executive. During his tenure as Law Minister, Arun Jaitley pushed through the appointment of Adarsh Goel to the Punjab & Haryana High Court despite an adverse Intelligence Bureau (IB) report. The then President, KR Narayanan, initially refused to sign the warrant but relented when the proposal was resubmitted with an endorsement by the then Prime Minister, Atal Bihari Vajpayee. Why Adarsh Goel despite an adverse IB report?

Then, there may be a situation where Collegium, led by the Chief Justice, recommends a candidate despite adverse material on record, or in a situation where the government, through IB, does not come clean on past records. Once a judge is appointed and has taken constitutional oath, challenging suitability becomes virtually impossible, as the focus shifts away from pre-appointment concerns. Supreme Court judges hearing a challenge are unlikely to decide against decisions taken by Collegium headed by the Chief Justice.

India is one of the few countries in the world where judges appoint judges. We cannot adopt an isolationist attitude to judicial appointments and be ignorant of how judges are appointed elsewhere around the world. During the NJAC hearing ten years ago, lawyers submitted comparative data from a dozen countries which the Court did not take very seriously. Currently, the appointment of judges is more like an exclusive, club-like deliberations between the executive and Collegium alone. We need a more open, inclusive, and accountable framework.

A positive first step toward reform would be for Collegium to publicly disclose the names of individuals under consideration for appointment, allowing for broader input and oversight. The public at large should have an opportunity to provide input once an individual is nominated for judgeship. This will ensure that the court retains the power to select judges, while also making the appointment process transparent and participatory. Collegium has unabashedly failed to enforce its own recommendations, which means that the political executive can interfere with the appointment process by either sitting on files or sending them back. In both cases, appointments get delayed, and seniority is affected.

Perhaps, it is time that we move on to experiment with a new model of judicial appointments. The Indian experience shows that judicial appointment is too important a task to be left in the hands of judges alone.

Q.2 Justice B.V. Nagarathna’s formal dissent against Justice Pancholi’s elevation has reignited concerns about the Collegium’s opacity. If the system was designed to guard against executive interference, how do we reconcile its democratic legitimacy when even internal dissent is either suppressed or revealed only through leaks, leaving the public with no principled reasoning from the Court itself?

You are right. The Supreme Court cannot, on the one hand, say that Collegium is the only way to secure judicial independence, and then simultaneously assert opacity in the way Collegium conducts business. Justice Nagarathna’s dissent in the case of Justice Pancholi, and the suppression of her dissent by Collegium led by Chief Justice Gavai, raises serious constitutional questions. The question is whether Collegium was right in sidestepping the dissent in the first place. This is on the test of prudence although a 4:1 Collegium decision may otherwise be valid.

The dissent, as reported in the media, is elaborate and critical. There are other senior women judges who were superseded. Why recommend Justice Pancholi when there are already two judges sitting on the Supreme Court from the state of Gujarat? When the Supreme Court currently has one woman judge? Some of the key factors that Collegium considers are seniority, merit, diversity, and High Court representation. You tell me, how can Collegium justify or explain Justice Pancholi’s recommendation? In fact, Justice Pancholi’s proposal was earlier dropped but then resurfaced? How? And, as you rightly pointed out, why do the people of this country have to know that a member of Collegium dissented through an investigative media report? We don’t know how many appointments were disapproved of by members of Collegium in the past. We don’t know if judges have been appointed despite adverse IB reports, or adverse reports from High Court chief justices. These are serious questions, but no answers are forthcoming from the Chief Justice who heads Collegium.

There is a controversy around the transfer of Justice Atul Sreedharan as we discuss this issue. Justice Sreedharan was transferred out of Jammu & Kashmir apparently because the government found his pro-liberty decisions uncomfortable. The transfer was given effect to only days before he was to become the Chief Justice. And now, he is being transferred out of Madhya Pradesh High Court because apparently, he directed registration of FIR against a leader of the ruling party for his hateful remarks against army officer Sofiya Qureshi. This does not end here. Collegium resolution states that the government sought a reconsideration of Collegium’s decision to transfer Justice Sreedharan to Chhattisgarh. The government requested that he be transferred to Allahabad instead. And Collegium passes a fresh resolution accepting the government’s request. Justice Sreedharan would have been number 3 judge in Chhattisgarh (and part of Collegium) but will be number 7 judge in Allahabad. Why did Collegium agree to reconsider its earlier decision? We do not know and we will not know.

But let me also tell you that Collegium has more democratic legitimacy than handing over complete de facto control to a powerful executive that does not appear to be constitution friendly. I believe that no bona fide discussion on the role of executive in judicial appointments could be had at a time when we have a powerful executive at the center. Our democratic institutions are being captured, and judiciary is no exception. Remember, we are not talking about the involvement of the executive in the appointment process (constitutionally permissible), but it’s dominant control, formally or informally (constitutionally impermissible). I also know that if Collegium does not fix itself then it will lose legitimacy, and the executive will be all out to discredit the system (which it often does). We have witnessed how former Vice President Jagdeep Dhankhar and former Union Law Minister Kiren Rijiju were all out to discredit Collegium and the very institution of the Supreme Court through their public addresses. This is why it is even more important for the Collegium, and it is indeed in Collegium’s own interest and legitimacy, to fix itself sooner than later.

Q.3 Should public opinion hold a say in the selection process, is it a healthy move to democratise judicial selection?

What good is a democracy if you do not democratize selection processes, more so, when it concerns appointment to constitutional posts? Is there any aspect of our lives that unelected judges do not govern? We have a parallel government running at the level of our constitutional courts on a daily basis. Having a say is a bar too high when Collegium has failed to meet even the lower bar which is to at least bring transparency in the selection process, so people of this country know why a certain individual has been recommended and appointed as a judge over other candidate.

At the end of the day, Collegium is an administrative body headed by the Chief Justice. So, how Collegium conducts itself will largely be influenced by who is occupying the office of the Chief Justice. For instance, Sanjiv Khanna-led Collegium resolved that it will not consider individuals whose relatives have served, or are serving, as judges of the Supreme Court or High Courts. And then we have Chief Justice Gavai-led Collegium recommending the name of his own nephew as judge of the Bombay High Court. There is no statement from Collegium on whether Chief Justice recused himself, so I take it that he did not.

It is public information that Collegium conducts interviews (personal interaction) with candidates, but we do not know what transpires behind closed doors. There is no public information on what criteria Collegium uses to assess the suitability of a candidate. We don’t know what kinds of questions are asked in the interaction that takes place between Collegium judges and potential candidates. We don’t know what responses they give. We don’t know how proposals are initiated at the High Court level and what factors and unwritten rules are at play. When was the last time that meaningful changes to the memorandum on appointments was carried out?

Q.4 Would you say that the collegium system has effectively created a judicial monopoly over judicial appointments? If so, what dangers does this pose to the doctrine of separation of powers?

Collegium emerged from a judicial precedent, so it essentially is a judge-made law. When you have the Supreme Court controlling a process, it is impossible to bring any successful challenge if you think something is amiss.

As an example, take the in-house disciplinary proceeding. That process is also notoriously opaque. You do not know how many complaints the Supreme Court has received so far; in how many cases inquiry was set up; and what the findings were. And you cannot question the practice or approach of the Supreme Court because ultimately it is the Chief Justice who oversees this process and no junior judge of the Supreme Court will want to go against the administrative decisions taken by the head of the institution so to speak. And it is the Chief Justice himself, as master of roster, who will determine which bench of the Supreme Court will hear any such challenge.

Coming back to Collegium, pertinently, the framers of the Indian Constitution never envisaged a Collegium system for judicial appointments. B.R. Ambedkar, the chief architect of the Indian Constitution, charted out a middle course for judicial appointments: he warned against an undemocratic judicial veto and left the issue of appointments with the executive subject to the CJI’s consultation. The rising dominance of the political executive in the 1970s and 1980s in a way not only allowed the court to unabashedly deviate from the strict constitutional mandate for appointing judges but also legitimize it.

However, in all these years, there is no empirical evidence to suggest that Collegium has produced better and more independent judges than the government did before the 1990s. As a matter of fact, we have seen some excellent judges appointed by the executive before Collegium came into being, who stood as bulwark against political excesses. This is not to suggest that judicial appointments must not be safeguarded against vested political interests. Collegium’s opacity and anarchy cannot be the answer to political supremacy in appointing judges.

Now the question is, does, or can, Collegium guarantee judicial independence? The judicial appointment process has become a trade-off between the judiciary and the executive. They both want their people on the bench. Executive exercises pocket veto on appointments and interferes with seniority. Strategic appointments of judges could give the executive an upper hand on who ultimately becomes the Chief Justice. Delay in appointment results in a loss in seniority. Collegium recommendations for lawyers who speak truth to power are stalled and Collegium does not fight back. Judges who show mirror to the executive are transferred and Collegium does not fight back. The executive can, and often does, interfere with judicial independence by offering post-retirement plum posts to judges. So, it is incorrect to say that Collegium guarantees judicial independence. But like I mentioned earlier, how judges are appointed is far more vital than who appoints judges. We can continue the debate on what an alternative could be, but what must immediately be done is to bring sunlight to the appointment process. Collegium must get rid of the opacity if it were to inspire public trust and confidence. That much is clear.

Q.5 Justice Chalmeshwar in his dissent in the NJAC Judgment opined that the assumption that “primacy of the judiciary” in the appointment of judges is a basic feature of Constitution “is empirically flawed. How far is this assertion true in your opinion?

The Second Judges Case said a lot of things but one thing it did not clearly say is whether primacy of the judges is part of the basic structure or not. To say that primacy of the judiciary in appointments is good for judicial independence is alright, but what happens when primacy rests elsewhere? Can it be said to be violative of the basic structure doctrine? The Court is silent on this. The primacy of Collegium is not, and cannot be, the only constitutionally permissible way to appoint judges. Ambedkar, as I mentioned earlier, chose a middle ground. In the Second Judges Case, the Supreme Court observed that the Chief Justice of India is best equipped to know and assess the worth of candidates. Justice Victoria Gowri’s appointment, however, demonstrates that the Chief Justice is, in fact, ill-equipped. Gowri, a friend of the ruling political party, had made questionable anti-minority public utterances in the past. At this point, one would believe that Collegium would take cognizance of the letters and convene an urgent meeting and clear up the controversy. Ultimately, it took a batch of writ petitions to get some reaction from the Supreme Court. The reaction only reaffirmed the notorious opacity (and incestuousness) with which Collegium has been functioning from start to end. When the challenge to her appointment was mentioned for listing before the then Chief Justice DY Chandrachud, he stated that Collegium had taken cognizance of what came to its notice after recommending Gowri’s name for judgeship. This raises an important question: can we trust Collegium that has no resource of its own to conclusively assess a candidate’s integrity and judicial merit?

When Collegium merely rubber stamps a government Intelligence Report without independently applying its mind, judicial independence and judicial credibility suffer a critical blow. This is especially so because, as I mentioned earlier, an appointment, once made, cannot be subject to the rigors of judicial review except on eligibility. To compensate for a brazen exercise of judicial overreach in the NJAC case, the Court said it will consider introduction of appropriate measures for an improved working of Collegium. However, a decade has since elapsed, but the Court has not taken substantial steps to make the appointment process fair and transparent, or to inspire people’s trust and confidence in Collegium. We must also understand that the question of primacy becomes irrelevant when you have a powerful executive stalling Collegium recommendation for years to the extent that lawyers had to eventually withdraw consent.