Weaknesses in the collegium system of judicial appointments have been flagged in the past. The Collegium was conceived to minimise the government’s influence in appointments, ensure independence of the judiciary, and help to attract talent to the bench. Over the years, it has been criticised for its lack of transparency, inconsistency, and the dominant role of the Chief Justice of India (CJI). While the dangers of conferring on the executive absolute power to make appointments to constitutional offices are clear, experience has shown that processes intended to insulate them from the government’s interference are not always foolproof. The disclosures made by former Supreme Court judge Sanjay Kishan Kaul in his memoir, Without Fear or Favour, highlight the infirmities of the system which the Supreme Court preserved after rejecting the National Judicial Appointments Commission, legislated by the government in 2015.

Justice Kaul says “it is fantasy to imagine that the Collegium is isolated from political pressures”, and illustrates the argument with experiences during his 14-month tenure as the senior-most puisne judge after the then Chief Justice D Y Chandrachud. He says Chandrachud sought the central government’s “pre-approval” regarding candidates the Collegium considered for appointment as judges. In one instance, Chandrachud drew Kaul aside and wondered whether he should seek the government’s view on a candidate. In another instance, the government wanted to know the caste of a minority community candidate’s family before they converted their religion. Kaul notes that the practice of government enquiring about judicial appointments existed before and after Chandrachud’s tenure – the pattern is systemic, not personal. But the larger problem is that the Collegium, or the CJI who headed it, was responsive to the government’s views on the matter. This defeats the very purpose behind the creation of the collegium system.

Chandrachud has said, in response to the disclosures in the memoir, that resolutions taken by the Collegium were unanimous, and that he recalled no recorded dissent by Kaul. But the former CJI has not denied that there were prior consultations involving the government regarding the judges’ candidature and appointments. Kaul’s disclosures have emphasised the need for clear rules and procedures, transparency, and a strong sense of autonomy that should guide the functioning of the Collegium. The system should consider itself accountable for its decisions. The responsibility primarily rests on the CJI, who should not allow themselves to be a conduit for the government’s preferences. The Supreme Court created the Collegium; it should now safeguard its credibility. (Source: DH)