Collegium: Not the fault inherent; but corrective

There are as many criticisms against the method of Judge’s appointment and critics are mainly on attacking the foundation of so called ‘judge made system” of judge’s appointment. But the present system of collegium is not mooted by the Judges, but the Law Commission as per its 80th report submitted on 10-08-1979, suggested the system to improve the then selection process of Judges. Renowned Jurist and former Chairman of Law Commission Justice H R Khanna has a major role in recommending the present system of collegium. He was associated with Justice S.N. Sankar, Justice Krishnamoorthy Iyer and jurist P.M Bakshi, in Law Commission. Though Justice Khanna resigned from the Commission, prior to the submission of report, the letter written by Justice Shankar confirmed the position that the recommendation in the report bears his full concurrence.

The commission proposed for initiation of selection process by the Chief Justice at least 6 months before the expected date of vacancy of a High Court Judge. Per them, the Chief Justice should consult his two senior most colleagues and the recommendation should reflect and indicate the view of those colleagues too. The recommendations of CJ which carries the recommendations of two senior most colleagues should normally accepted. Some of the pre-requisite qualities of a selectee, as recommended by Justice Khanna and his team are maturity of the person and according to him such maturity normally comes with years, brilliance and quick up-take being no substitute for it. The minimum age should be 45 years and the upper age should be 54 years, but in exceptional cases, Justice Khanna recommended relaxations.

As additional qualities, it suggested to consider the competence, reputation for integrity and hard work, attitude of sobriety, balanced approach and dignity of the selectees. It also suggested appointing 1/3rd of the Judges in a High Court, at the stage of initial appointment itself, from outside the State.

So, as understood by many of the critics of collegium, it is not a self made scheme by the Judges, but supported by a well researched and studied report of the Law Commission of India. Of course, many changes were made in the earlier system, through judicial interpretations, but basically, the prevailing system is in consensus with the method suggested by the Law Commission. 

One of the major criticisms against the present system is that it delivered unmeritorious candidates, owing to special reasons or personal bias. But it is not the fault of the system, but it proves the incapacities of the persons who manned the system.  So we should think, as regards restructuring the collegium system, not to vanish it, declaring it as most handicapped, but to improve it in terms of the wisdom of Justice Khanna.

Ancient jurist Katyayana’s suggests seven qualities to be considered for the appointment of judges. Those qualities are akrurha (no ill will), madhura (politeness), snigdha (dispassionate), kshamajuto (forgiveness), bichakshana (educated, having an analytical mind), utsahabana (spirited and hard-working), and nirlobha (without greed). Lord Denning suggested that he must be independent of any influence or interference and the critical test, according to him, which the selectee must pass, is to enjoy the confidence of the people by acting independently of the executive.

In Islamic states, they accept anyone, but not the strangers or talebearers. Some of the qualities, suggested by West are those who; respect all Human Rights and be courteous; perform diligently and in a disciplined manner; promote team work; pursue excellence in service; exercise responsibility and good stewardship; promote transparency and accountability; discharge duties with integrity, and maintain political neutrality.

Despite of the qualities of a prospective judge, as suggested by the Law Commission, in its 80th report, there must be a system of accessibility for the Bar and an open invitation must be there by the collegium, at the initial stage itself, inviting bio-data of candidates. There must be a consultative process with Bar Association and Senior Lawyers of the Bar, by the Chief Justice, ahead of placing the resumes before the collegium. Of course, qualities as suggested by the commission are subjective factors, but at different levels of consultative processes, the conflict of opinions may guide the collegium to find out an apt person. Don’t kill it; but alleviate it.