With SC reforms stuck in time warp, it would bode well for collegium to finalise 'Memorandum of Procedure' soon

Reforms to judicial appointments in India seem to be stuck in a time warp. If one were to create a timeline of events on this subject, the last significant event will be traced back to 2015 when the Supreme Court struck down the constitutional amendment as well as the law which would have established the National Judicial Appointments Commission (‘NJAC’).

The NJAC, comprising three judges, the Union Law Minister and two eminent persons, was tasked with appointing judges to the Supreme Court and High Courts.

This decision was momentous in ways more than one. It was a rare instance where the Supreme Court invalidated an amendment to the Constitution. It was also the time when the Supreme Court nipped in the bud a legislative attempt to replace the judicially-created collegium with an appointments commission.

The jury will forever be out on whether or not the NJAC would have been a worthy substitute for the collegium. It is, however, abundantly clear that as an institution, the collegium itself has not aged well and is in dire need of a rehaul.

The judges who invalidated the NJAC were not wholly unaware of that fact, considering how they directed the Central Government to revise the Memorandum Showing the Procedure for Appointment of the Chief Justice of India and Judges of the Supreme Court of India (MoP) so as to improve the working of the collegium system. Almost 5.5 years since the day of this judgment, the MoP, along with the reform of the collegium system, still awaits finalisation.

The problem

If outgoing Chief Justice of India SA Bobde retires without ensuring any appointment to the Supreme Court, his tenure would have exemplified all the major flaws that ail the working of the collegium. Two such issues deserve mention here — first, the absence of any correlation between the time when a vacancy arises and when a recommendation for appointment of a judge is made, and second, the absolute lack of any established and formal principles which determine the suitability of judges who get recommended for appointment to the Supreme Court.

A quick glance at the MoP will reveal that the primary focus of this document, as its name suggests, is to lay down the rules as well as name the members who will take part in the consultations for recommending judges for appointment to the Supreme Court.

The concern regarding when an appointment needs to be made is only ancillary — para 3 of the MoP states that “Whenever a vacancy is expected to arise in the office of a Judge of the Supreme Court, the Chief Justice of India will initiate [a] proposal....”

The absence of a stipulated time period within which a recommendation must be made belies the reality of the present situation — that the last appointments to the Supreme Court were made in 2019, and the Court is working at a strength of twenty-nine, five short of the sanctioned strength of thirty-four.

Given that the memorandum is one prescribing the “procedure”, it can be excused for not laying down the criteria which determine the suitability of potential candidates.

Beyond the bare minimum eligibility requirements (in terms of age, years of professional experience, etc) prescribed by the Constitution, the suitability of candidates who get appointed to the Court inevitably has to align with the informally devised ‘quotas'.

In his book, titled “The Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court of India”, Dr Abhinav Chandrachud discusses the existence of geographic and demographic diversity as criteria in making judicial appointments.

This informal quota system, which ensures the diversity of appointees across religion, region, caste, and gender, exists outside the scheme of the Constitution. Needless to say, the emergence and development of these quotas is largely devoid of any sustained principle, and is based on convention.

The apparent failure of CJI Bobde to ensure a single appointment to the Supreme Court is based on the interplay of the numerous quotas (especially gender and regional representation), with the overarching consideration of seniority added to the mix.

In an attempt to achieve the ideal permutation of appointees, the present collegium risks gaining the infamous distinction of not appointing anyone!

The impact

In a rather straightforward manner, the failure to make timely appointments to any court feeds into the pendency of cases. It is particularly worrying for the Supreme Court given how key questions of constitutional law continue to await adjudication by benches of five judges or more.

The absence of principled criteria in the appointment, however, has a deeper and more systemic impact. Transparency, the lofty ideal which informed much of the discussion around improving the collegium system, remains elusive.

To its credit, the Supreme Court collegium had begun making its resolutions (recommending appointees) public in 2017, along with reasons for appointing a particular judge, the status of pending inquiries against them, and the views expressed by various consultees during the process.

However, as the more recent updates on the “Collegium Resolutions” section of the Supreme Court website will reveal, the information provided in these resolutions has become crisper. In a rather abrupt move, these resolutions now only mention names of those recommended for appointment, bereft of any reasons.

At the same time, the lack of objective criteria for appointing judges breeds speculation when a particular judge recommended for appointment by the collegium is rejected by the Union Government. In essence, for the public at large, there are no set parameters to go by which can inform them how the highest judicial institution of the country appoints its judges.

The solution: stating the obvious

There is not much left to say about reforming judicial appointments that have not been said already.

To a lay outsider, the disagreements surrounding the proposal to elevate Justice BV Nagarathna (and many other such instances) portrays the Supreme Court as an institution that remains unsure of how to select its judges.

For the lawyer who is well-versed in the legal aspects of judicial appointments, the Supreme Court neither let the Union Government reform the judicial appointments process (by means of the NJAC) nor is it initiating any reform by itself.

Neither of these two aspects bode well for the public perception of the Supreme Court.

It would be a platitude to say that the MoP, with all its embellishments, needs to be finalised soon. Given how half a decade has already passed since this process began, it is perhaps necessary to state the obvious.

The writer is a senior resident fellow and lead, Charkha, Vidhi Centre for Legal Policy’s Constitutional Law Centre. She is also one of the editors of “Appointment of Judges to the Supreme Court of India: Transparency, Accountability and Independence” (Oxford University Press, 2018).

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Ritwika Sharma