An oligarchy of judges?

A flawed ruling of the Supreme Court, projected as judicial jurisprudence of dubious intellectual activity, has exaggeratedly created an ‘avatar’ with the power to choose ‘justices’ as a secret process.

Its foundation is an arbitrary doctrine of unfettered independence of the ‘robed brethren’ of the higher courts, which allegedly absolves them from political, communal and regional partialities, personal angularities, professional anfractuosities (long-windedness), class prejudices and other miscellaneous aberrations.

The judicial collegium is vested with the authority to handpick higher court incumbents, decide on transfers of justices  and suggest elevations to the Supreme Court  (SC) directly from the Bar or high courts. Nothing in the provisions of the Constitution warrants this bizarre jurisdiction in SC to invent an extraordinary entity, ignoring the categorical clarification given in the Constituent Assembly by Dr Ambedkar that only consultation, never concurrence, be part of the process to select judges.

An oligarchic collegium is an infantile concept if I may say so, with due respect to our judges. This incarnate owes its existence to a pronouncement by a slim majority of 5 to 4 (Supreme Court Advocates-on-Record Assoc. Vs Union of India) reversing a long-standing praxis regarding appointments of judges by the President, based on the recommendation of the Central Cabinet.

This system governed since the inception of the Constitution. Indeed, great judges of the high courts and SC  have been the glory of our justice system — appointed by the top executive in consultation with the pro tem Chief Justice of India. The nine judges who sat on the Bench and made this historic upset with this curious ‘collegium’ pronouncement themselves were the offspring of the pre-Collegium practice. Nowhere in the civilised world have judges themselves seized the power to appoint their own brother (and sister) judges.

This judicial hunger for executive power of a high order is an inglorious departure from the basic structure of the Constitution. It is denial of the democratic process for the people to have no voice in or even information about the candidates to be selected for judicial office; the entire operation being usurped, at it were, by an unaccountable collegium of judges whose decisions are secret, a mystery and an enigma.

The basic principle of natural justice which must apply to judicial appointments is aptly expressed by the old Roman adage “Whatever touches us all should be decided by all”. The contraption of the collegium as an instrument for selection of judges, comprising three senior-most judges of the High Court concerned, at the initial stage, and the senior-most three  judges of the SC at the final stage is imposing at first sight but unscientific, impractical and unfair, viewed objectively.

Three judges, accidentally the senior-most, possess no special training; nor have they any criteria made out for testing the capacity of the candidates. Three lay persons, who may be good judges in hearing cases, are raw hands when functioning as selecting agency without guidelines or public consultation with the Bar or  other judges on the professional merits, character and integrity, social philosophy, political commitments and key aspects like class and religion, makes the operation odd, even arbitrary.

Moreover, partiality, relationship to judges, dynastic factors, high income, caste and community considerations, prevail in many cases. Then favourable and unfavourable aspects relevant to the candidate’s suitablity vis-a-vis his judgeship may be brought to the notice of the collegium by social activists, advocates, jurists and others.

The administration may have their views on the candidates. Currently, they have no voice or opportunity for communication. The collegium does not investigate into the antecedents  of candidates nor has the means for it and is not accountable to any  administrative machinery. Even the bar has no formal information about nominees under consideration. The whole process is  almost privatised, personalised and devoid of goverment comments.

Persons are chosen, privileged groups get priority, reconsideration is often rejected. The collegium has an unscientific methodology and its selection has been criticised. Therefore, the collegium, as a system, must go.

If appointments of judges are not to suffer  disappointments, if investigation into the merits of candidates  is to be a condition for the elevation of advocates to the Bench, if transparency, accountability and exposure of proposed nominees to public criticism through responsible information imparted confidentially to the appointing agency is fair, then we need a constitutional code, wholesome  and principled. The present collegiate elitism is the vanishing point of democratic values in the justice pyramid.

The writer is a former Justice of the Supreme Court