Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Rishabh Yadav, a postgraduate law student at the University of Delhi, and Nakul Rai Khurana, a law student at Jindal Global Law School. 

Last Monday, the 10th of October, the Indian Supreme Court Collegium published a Resolution to pause various appointments and elevations of judges to the Supreme Court of India for the time being.

The Supreme Court Collegium (Collegium) is a body consisting of the Chief Justice of India (CJI) and four of the most senior puisne judges of the Supreme Court, responsible for appointment and transfer of judges to various high courts and the apex court. Article 124 of the Constitution of India provides that all judges are appointed by the President of India and gives details of all the requirements for the position. Article 124A of the Constitution interestingly delegates the responsibility of the Collegium to a National Judicial Appointments Commission. Yet, because of the Fourth Judges Case in 2014 finding that the impugned legislation attacked the independence of the judiciary and did not provide “adequate representation” to the judiciary, that article is currently invalid. The old Collegium system of appointing judges still reigns, despite countless efforts to replace it due to its well-known problems of transparency, objectivity, and cohesiveness and more recently, its indecisiveness. Clearly, as seen by the Resolution, these problems have not subsided. Here’s how the Collegium arrived at this standstill result in a particularly unusual series of events.

First, as per usual, a formal meeting of the Collegium took place on the 26th of September to deliberate upon the appointment of Supreme Court judges. Another meeting was scheduled for the 30th of September to finalize their decisions on the appointments. The Honorable Justice DY Chandrachud could not participate in the meeting due to it being held late in the evening. In light of this, CJI decided to circulate a letter proposing appointment of certain judges, a practice never done before. Three Collegium members assented to the proposal, but two judges—Justices DY Chandrachud and S. Abdu Nazeer—objected. The objection primarily stemmed from using the “letter” method for judicial appointments. They argued that the candidates needed to be deliberated by the collegium members in-person to maintain the integrity of the democratic procedures. Uday Umesh Lalit, the current Chief Justice of India, also asked for reconsideration of such a stand by seeking a formal written note to the judges who stood firmly against the procedural unfairness. The explosion of such processes has raised questions on the working of the Collegium, strengthening the already existing debate around the lack of transparency and accountability of the appointing body.

Ambiguity in the procedure of judicial appointment was already an issue due to the criteria on which recommendations are formulated. In 2017, an effort to maintain transparency was initiated by uploading collegium resolutions online. Yet, over time, the upload of full resolutions stopped and was replaced with brief statements, including recommended names for appointment.

Adding even more questionable influence on the appointment process, the Union government is permitted to finally accept or reject the appointment or transfer of judges. This intervention by the executive has often seemed to weaken the authority and legitimacy of the Collegium system. Justice Madan B Lokur, a former Supreme Court Judge, recently opined on the issue by expressing his opposition to the Central Government’s unwarranted segregation of the Collegium’s resolutions. He added that “it is unfair on the part of the Centre to keep certain collegium proposals pending.” On the 11th of October, The Union government approved the transfer of three judges to various high courts on the recommendation of the Collegium but withheld the transfer of Justice Muralidhar to the Madras High Court Chief Justice.

Justice Lokur commented that the executive’s “pick and choose” methodology and intervention slows the processes and produces decisions based on nepotism and favoritism. The public is made unaware of when and how the Collegium meets and how their deliberations occur. It is not clear whether there is a prescribed selection criterion and what they may be, as the deliberations are a closed-door affair. Although recommendations and reiterations made by the Collegium are binding, they are still sometimes returned by the Centre, with no justifications or reasons.

There are examples of High Court judges being transferred in a manner which appears punitive. Justice S. Murlidhar, a Delhi High Court judge, was transferred soon after he made critical remarks related to the police investigation in a riots case. J Akhil Kureshi, who was in line to become Chief Justice of the Gujarat High Court, was transferred to the Bombay High Court where he would never become Chief Justice. He retired without ever being elevated to the Supreme Court, with his name constantly being objected to by the Executive. Coincidentally, he previously ruled in an important case which affected the current Central government leadership when they were in power in the state government of Gujarat. A year after making critical remarks against the Election Commission, Chief Justice Sanjib Banerjee of the Madras High Court, a court handling tens of thousands of cases every year, was transferred to Meghalaya High Court, a much smaller court handling 900 cases. Constant transfers in these constitutional courts dilute their importance and undermine the independence and stability of the judiciary at the state level. There have been allegations of corruption, nepotism, and casteism in the appointment process. Additionally, the representation of women on the bench has been few and far in between.

These situations and events result in a trust deficit in the CJI led Collegium. As stakeholders of the judiciary, our trust is conformed to those presiding over our cases and grafting our destinies. The free and uninfluenced exercise of the judges is at the pinnacle of our judiciary’s independent factor, which is its strength. Intervention by the executive only adds to the citizen’s mistrust and lack of faith in the proper and effective working of our judiciary.