The appointment of Sanjiv Khanna to the Supreme Court on January 10 saw controversy on Tuesday as former Delhi High Court judge Kailash Gambhir wrote to the President objecting to the move since it “superseded almost 32 judges”. Moreover, January 10 also saw the Supreme Court collegium scrap a decision it took on December 12 to appoint two judges, reported the Indian Express.
Even as the sudden move on January 10 causes disquiet amongst a section of the judiciary, there is no communication from the Supreme Court on why it scrapped its decision of December 12 and went with the choices it did. The lack of clarity shines a spotlight on the opaque collegium system of appointments in the higher judiciary.
India is unique among democracies in that the nation’s judges appoint other judges. A collegium of the chief justice and four senior-most judges of the Supreme Court decides nominations to the higher judiciary. The system, developed by the Supreme Court in 1993, finds no mention in the Indian Constitution. The country’s founding fathers envisaged a method where the Union government would appoint judges in consultation with the chief justice. Efforts to change the collegium system have been resisted by the Supreme Court, which in 2015 struck down a constitutional amendment that sought to replace it with an appointments commission.
While the collegium began with a desire for judicial independence, there are indications that the pendulum might have swung too far to the other side. Collegium appointments are not transparent. Indians are unaware of how or why a certain judge was chosen. This is in sharp contrast to other democracies where judicial appointments are sharply scrutinised by other branches of government as well as the media.
This culture of opacity has leaked into other aspects of the judiciary. For example, the higher judiciary has exempted itself from the Right to Information Act. Questions have also been raised about judges ignoring conflicts of interest while hearing cases.
The lack of transparency has caused significant distortions in the working of India’s higher judiciary. In 2018, four senior judges of the Supreme Court took the unprecedented step of addressing a press conference to protest the lack of transparency in the functioning of Dipak Misra who was then the chief justice. On Sunday, Supreme Court judge AK Sikri turned down the post of president of the London-based Commonwealth Secretariat Arbitral Tribunal. This came after it was reported in The Print that he had been recommended for the post by the Union government even as he voted with it to controversially remove the chief of the Central Bureau of Investigation.
India needs to restore the credibility of the higher judiciary. In this, it is crucial to make the process of the appointing judges transparent. The collegium must open its proceedings to the public, allowing the best disinfectant – light – to do its work.