India’s collegium system of judicial appointments has come under sustained criticism for handing judges control over their own appointments. Every time a judicial controversy arises, people call for the collegium to be junked and replaced with something that gives the executive and others a greater say in who becomes a judge. On Monday, retired Supreme Court Justice Markandey Katju started the debate again by alleging that a politically connected High Court judge was retained on the bench despite corruption allegations.

Predictably, the collegium has been blamed for allowing this to happen and there have been demands for the system to be changed. The ruling coalition, the National Democratic Alliance, has even declared that it is looking to move the Judicial Appointments Commission Bill forward. But are we right in holding the collegium responsible? And will replacing it with a system that gives the executive a greater say really be beneficial to the Indian polity?

It’s worth looking at the two judicial appointment scandals that have already arisen under this young government.

L’Affaire Subramanian
Eminent lawyer Gopal Subramanian’s name was on the list of four judges forwarded by the collegium to the Union Cabinet before it is sent for presidential approval. The cabinet has the right to return some of those names to the collegium for reconsideration, which is what it did in Subramanian’s case.

Alongside this, a series of leaks started to emerge in the national press that questioned the senior advocate’s integrity. A Central Bureau of Investigation report, which duly made its way to the press, cast doubt on Subramanian’s behaviour and alleged role in the 2G spectrum scam trial and the Niira Radia tapes.

Before the collegium could take a second look at Subramanian’s name, he withdrew his candidacy, claiming his independence as a lawyer caused apprehensions that he would not toe the government line.

The Katju Controversy
In a blogpost that was also carried on the front page of the Times of India on Monday, Katju alleged that a politically connected judge from the Madras High Court with numerous corruption charges against his name was still allowed to remain on the bench. Katju claimed that he had notified the then-Chief Justice of India about the corruption complaints and the existence of an Intelligence Bureau report allegedly detailing some of these charges, but the named judge was not only retained but given extensions and eventually made permanent.

Most explosively, Katju said he was told that the tainted judge managed to stay on only because a political party from Tamil Nadu that was a member of the ruling coalition put pressure on the Congress, which then sent a minister to convince the Chief Justice to continue with the allegedly corrupt judge.

The Case for the Prosecution
The chief argument against the collegium is that it gives too much power to judges to decide who will sit on the Supreme Court and High Court benches. Yet, if you accept the facts that have been offered in both of these cases, it is clear that the executive has no difficulty intervening in the appointments process.

In Subramanian’s case, a series of careful leaks coupled with the cabinet’s decision to return his name to the collegium prompted the senior lawyer to withdraw from consideration. If the collegium had sent his name again, the cabinet wouldn’t have been able to stand in the way, but his withdrawal, hastened by leaks to the press, ensured that this wouldn’t happen.

In Katju’s story, the Congress government was able to pressure the Chief Justice of India into overturning a collegium decision. Instead, the then-CJI would go on to extend the HC judge’s tenure by a year.

Both cases involve the executive using both official processes, such as returning the name of a proposed judge, and unofficial ones, like persuading the CJI to overturn a decision, to have their way.

Easier for the Executive?
The law minister told Parliament on Monday that the government is beginning consultations on a Judicial Appointments Commission Bill. The proposed legislation would establish a commission to decide on judicial appointments, featuring both judicial and executive representation.

But some believe this would simply make it easier for the executive to influence the process.

“If you officially involve the executive in appointments, you’ll be opening the process up to all these questionable things that are being reported,” said Gyanant Kumar Singh, a Supreme Court advocate. “If politicians had the power to pressure the prime minister to retain a judge in the collegium system, with a commission, they’ll start asking for their own judges. An ally in a coalition government will start asking for two or three judges of his own. That will be their leverage.”

Prashant Bhushan, an activist lawyer and leader in the Aam Aadmi Party, has long campaigned against the collegium turning into a judicial cabal. Yet he too echoed these concerns about the proposed commission. “With an executive-influenced commission, these sorts of things – the executive’s moves – will only get worse,” he said.

Bhushan is calling instead for a commission that works independent of both the government and the judiciary, along the lines of the United Kingdom’s judicial appointment commissions. Singh, on the other hand, believes that increased transparency in the collegium system would solve most problems.

“Right now, information about judges’ pasts only come out in leaks. Why should it be leaked? It should be released. Announce the names you are considering, let complaints come to you and then decide on the merit,” he said. “If the government is sending a name for reconsideration, it should say why it is objecting, and the collegium should clear this up. If the [then] Chief Justice knew that Katju would eventually spill the beans, there is no way he would have pushed through this name.”

As the law ministry begins consultations over the provisions of the Judicial Appointments Commission Bill, it is important to remember that adding an executive voice to proceedings will perhaps only exacerbate the problems that have caused controversy.