Judicial appointments in the higher judiciary have been a source of contention between the judiciary and the executive for the past fifty years.

Background:
The debate over judicial appointments in the higher judiciary has resurfaced in recent weeks. Recently, the collegium led by Chief Justice Chandrachud asked the Executive about the appointment of five advocates to become judges in the High Court's collegium between 2018 and 2021.

The collegium recommended the advocates be elevated as judges at the High Courts. The collegium said that the reasons the executive gave for not appointing the recommended advocates were not reasonable and had no basis in fact or law. This rekindled the fifty-year-old debate between the judiciary and executive over the appointment of judges to the higher judiciary. In this article, I will elaborate on the legal standing of this issue through the lens of the constitution and judicial precedents.

Presently, the collegium system is headed by the Chief Justice of India and the four seniormost judges of the Supreme Court. The Constitution of India stipulates that the judges of the Supreme Court and high courts shall be appointed by the President of India based on a process of consultation with the senior judges of the Supreme Court. The present collegium system is the product of the judicial interpretation of this constitutional provision through a series of cases from 1981 to 1998.

In 1981, in the case of S.P. Gupta v. Union of India (the First Judges Case), the Supreme Court held that reaching consensus on recommendations was optional for the consultation procedure with the CJI and other judges. The decision essentially granted the central government "primacy in judicial nominations." This decision was overturned by a nine-judge bench in 1993 in the SCAORA v. Union of India (Second Judges case).

The collegium system was established because "consulting" required "concurrence." To be more precise, the decision said that the selection of judges would be based on "an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court" and the CJI. In 1998, the In re Special Reference Case (Third Judges Case) established the system that is most comparable to the one that is now being used, determining that the collegium would be a five-member body.

Governments of all parties, however, remained dissatisfied with the system because they thought their authority had been unconstitutionally limited. The National Judicial Appointments Commission (NJAC), established by the Constitution's 99th Amendment, intended to change this situation. The Commission was supposed to have the Law Minister, "two imminent personalities," and the Chief Justice of India, along with the two seniormost judges of the Supreme Court.

However, this was never put into practice because the Supreme Court quashed the amendment (SCAORA v. Union of India, 2015) for undermining the independence of the judiciary and, as a result, violating the "fundamental structure" of the Constitution. The judgment is not without flaws, and it runs the risk of being a barrier to any significant reform of the appointment-making procedure itself.

The NJAC Act (which was also quashed) said very little regarding the necessity of transparency in the selection process or qualifications for judges, allowing most to be determined by "regulations" created by the commission. Despite being constitutional, it was rife with paradoxes and completely shut state governments out of the high court judge appointment process. The Court acknowledged the issue with the collegium system of appointments even as it abolished the NJAC (by a majority of 4 to 1).

Justice J. Chelameswar, who didn't agree with the majority, said that the collegium's actions were "absolutely opaque and inaccessible to both the public and history, except for occasional leaks." After abolishing the NJAC, the Supreme Court asked for suggestions on how to improve the collegium system in the same case and suggested amending the Memorandum of Procedure, particularly with regard to aspects of transparency, criteria, a mechanism to handle complaints, and a permanent secretariat to support the collegium. Even if the court made a few suggestions, the Memorandum of Procedure has remained unchanged.

Analysis
Academicians and members of the legal fraternity have heavily criticized the present collegium system for its lack of transparency, absence of formal criteria for being chosen for being elevated to the bench, etc. Interestingly, the collegium system structurally favors upper-caste males and is far from being representative of the population it professes to serve.

The data show that people from dominant identities are overrepresented in the higher judiciary. In particular, throughout the first 37 years of the Supreme Court's existence, it had only ever appointed male judges.

The Supreme Court appointed its first female judge, Fathima Beevi, in 1989. Further research done by scholars has found that only four of the 127 Supreme Court judges between the middle of 1985 and the middle of 2010 were women. It was also discovered that three to four Supreme Court judges had non-Hindu backgrounds throughout the same time frame.

The collegium system won't have the legitimacy or credibility to be accepted by all stakeholders involved in the legal system if the judge-appointment procedure is not transparent. By just promising that the collegium's members will operate transparently, transparency won't be established.

The mechanism the judiciary uses to choose judges will have to serve as evidence of it. The present debate between the judiciary and executive will remain unresolved if both agencies do not make efforts to resolve this conundrum and create a more transparent system for appointing judges.

Also Read:

• Judicial Appointments: An Analysis Of The System Of Appointment Of Judges In India
• National Judicial Appointment Commission Act
• Judges Are Not Above Law; Judicial Appointment Process Must Be Made Transparent; holds Supreme Court