Former Supreme Court Justice Rohinton Nariman recently put forth a nuanced proposal for an alternative framework to the existing Collegium system for judicial appointments in India, aiming to enhance judicial independence.
Drawing inspiration from a 1980 letter by Justice HR Khanna to the Law Minister, Justice Nariman suggested a structural alteration: a panel comprising the Chief Justice alongside four retired judges. He argued that this configuration would better safeguard judicial autonomy.
“But is there some other system which can be put in its place? Now, having thought a lot, I came to the conclusion, and I took this from a letter that Justice Khanna wrote in 1980 to the law minister, that why don’t you have a panel of the Chief justice and three retired judges? According to me, if you have a panel of a Chief justice and say four retired judges and nobody else, it will subserve judicial independence,” he said, per Bar and Bench.
“It would subserve judicial independence. If you appoint retired judges long enough such as a tenure of five years, the transient chief justices won’t be a problem,” he added.
During a recent event in Chennai, where retired Justice Akil Kureshi was honoured with the ‘SGS Award for Ethics in the Legal Profession,’ Justice Nariman elaborated on his proposal stressing the importance of selecting retired judges through a process involving practicing members of high court bars and the Supreme Court bar.
Advocating for transparency and inclusivity, Justice Nariman proposed that these practitioners compile a list of candidates, from which the Supreme Court judges would then collectively choose the panel for the commission.
“They would get a list of 20 to 40 from high courts and 20 from the Supreme Court. Then, the entire supreme court judges can sit and pick the panel for the commission from this list,” he said.
Justice Nariman said that the inclusion of retired judges with substantial tenures, such as five years, would mitigate concerns regarding the transient nature of chief justices.
Reflecting on the shortcomings of the current collegium system, Justice Nariman said, “The misfortune of the existing collegium system was it has not been operated according to its timelines. Two, it has not somehow thrown up the best. We had persons like Justice Kureshi and many others, who somehow were not amidst us. They are as meritorious as others. But their merit consists of being fearless and independent.”
Despite being the senior most chief justice of a high court, Justice Kureshi had not been elevated to the Supreme Court. Justice Kureshi lamented that the critics of the collegium system have not presented any alternative for selecting judges.
In India, until 1993, the appointment of judges was done by the President in consultation with the Chief Justice and two other senior-most judges of the Supreme Court. Since 1993, it is the Collegium system evolved by the Supreme Court that decides on appointments and transfers of judges in the higher judiciary, though the nominal appointing authority is the President of India.
Chief Justice of India DY Chandrachud, however, has defended the collegium system of judges appointing judges to the higher judiciary, asserting that steps have been taken to ensure greater transparency. Dismissing criticism to the process, the CJI said that every effort is being made by the collegium to ensure the due process of consultation is followed before the appointment of a judge.
“To say that the collegium system is lacking in transparency would not be correct. We have taken steps to ensure that greater transparency is maintained. A sense of objectivity in the decision-making process is maintained. But I must also share something and that’s my caveat. When we consider judges for the appointment in Supreme Court, we are dealing with the careers of the sitting judges of the high court.”
“Therefore the deliberations that take place within the collegium can’t be put out in the public realm for a variety of reasons. Many of our discussions are on the privacy of those judges who are under consideration for appointment to the Supreme Court. Those deliberations, if they have to take place in a free and candid atmosphere, can’t be the subject matter of video recording or documentation. That is not the system which the Indian Constitution has adopted,” Chief Justice Chandrachud had said in January.