A Reflection on the Collegium System and the Future of Judicial Appointments

 

A Reflection on the Collegium System and the Future of Judicial Appointments

If I am not mistaken, and based on what I have observed so far, I have rarely come across an ordinary citizen or a commoner openly advocating for the continuation of the present Collegium System for the appointment of Judges of the Higher Judiciary.

The debate surrounding the Collegium System is, by and large, conducted within the legal and judicial establishment itself. Existing and former Judges, senior members of the Bar, constitutional experts and other persons closely associated with the judicial system are generally the principal voices in this discussion.

That, by itself, raises an important question:

Should a system concerning the appointment of Judges of the highest constitutional courts remain a subject predominantly debated and defended within the very institutional structure that operates that system?

In my humble view, the question deserves a much wider constitutional and public discussion.

Is the Collegium System capable of creating an institutional cycle?

One concern that arises in my mind is whether the continuation of the Collegium System, in certain circumstances, may contribute to the creation of an institutional cycle in which expectations regarding elevation to the Bench continue from one generation to another.

I do not suggest that every Judge belonging to a particular family background acts in this manner. Nor do I suggest that every second- or third-generation member of a judicial family necessarily possesses any unfair advantage.

However, human institutions are not completely free from social influences.

Where a person grows up in a family in which one parent is a Judge, the child may naturally grow up observing the judicial profession from a very different environment from that experienced by an ordinary member of the public. The family may have greater familiarity with the legal system, judicial functioning, professional networks and the culture surrounding the higher judiciary.

These circumstances may create advantages—whether intended or unintended—which may not necessarily be available to everyone entering the legal profession from an ordinary background.

Over time, such circumstances can also influence aspirations.

When the child subsequently enters the legal profession, the possibility of becoming a Judge may appear not merely as an abstract constitutional responsibility but as an established professional destination within the family environment.

That is where the question of institutional openness and equal opportunity becomes important.

Is there any special DNA for becoming a Judge?

There is certainly no known constitutional, legal or biological principle which suggests that judicial ability is inherited through family lineage.

There is no special “judicial DNA” which automatically determines that the child of a Judge, or the second or third generation of a judicial family, is inherently more suitable to become a Judge.

Judicial excellence should ultimately depend upon qualities such as legal knowledge, intellectual ability, integrity, independence, temperament, constitutional understanding, professional experience, impartiality and commitment to justice.

These qualities can exist in a person irrespective of his or her family background.

Therefore, the central question should not be:

“From which family does the candidate come?”

The question should be:

“What objective process can identify the person most suitable to discharge the constitutional responsibilities of a Judge?”

A comparison with entry into other public institutions

Another issue deserves consideration.

An LL.B. degree provides the necessary academic qualification to enter the legal profession, but possessing an LL.B. degree by itself does not establish that a person is automatically capable of performing every judicial function.

For several public appointments and services, candidates are required to undergo competitive examinations, assessments, interviews, training and other objective processes.

At the entry level of the judiciary also, judicial officers generally enter through prescribed competitive judicial service examinations and selection procedures.

If merit-based competitive selection is considered appropriate for identifying judicial officers at the subordinate level, the constitutional community should also examine whether greater transparency and objective criteria can have a meaningful role in appointments to the Higher Judiciary.

This is not an argument against experience.

Experience is indispensable.

Nor is it an argument that every Judge must be selected through a conventional written examination.

The Higher Judiciary performs constitutional functions of an entirely different nature, and therefore its method of selection necessarily requires a different framework.

But different does not necessarily mean completely insulated from objective and transparent standards.

The need for a wider debate

In my view, the time has come for a serious and dispassionate national conversation about the Collegium System.

The issue should not be treated as a contest between the judiciary and the executive, nor as an attack upon the independence of the judiciary.

Judicial independence is indispensable to democracy and the rule of law.

At the same time, transparency, accountability, equal opportunity and public confidence are equally important components of a constitutional democracy.

The real question, therefore, should be:

How can India preserve the independence of the judiciary while simultaneously ensuring that the process of selecting Judges is transparent, objective, inclusive and capable of inspiring confidence among ordinary citizens?

Perhaps the answer lies in developing a system which combines judicial independence with demonstrable transparency, professional merit with experience, and institutional safeguards with equal opportunity.

A possible reconsideration of the existing arrangement

At the subordinate judicial level, candidates are already required to undergo competitive judicial examinations and prescribed selection processes.

For the High Courts and the Supreme Court, the existing constitutional mechanism involves recommendations rather than a comparable competitive selection process.

Whether the present arrangement is the best possible mechanism is, in my view, a legitimate constitutional question deserving careful reconsideration.

The issue may therefore appropriately be placed before the Hon'ble Supreme Court of India, and, where constitutionally permissible, before the appropriate constitutional forum, for a fresh examination of the principles governing judicial appointments.

The objective should not be to weaken the judiciary.

The objective should be to ensure that the judiciary remains independent, while the pathway to judicial office remains open, transparent and based upon demonstrable merit rather than perception, lineage or institutional familiarity.

The judiciary belongs to the Constitution.

The Constitution belongs to the people.

Therefore, any system governing access to the highest judicial offices should ultimately command the confidence not only of Judges and lawyers, but also of the ordinary citizen.

This is not a criticism of any individual Judge or any particular judicial family.

It is simply a question about institutional design, equal opportunity and the future of the Indian justice system.

The time has perhaps come to ask difficult questions—not with hostility, but with constitutional maturity.

Should the Collegium System continue in its present form, or is there a need to reconsider and reform the mechanism of appointment to the Higher Judiciary?

The debate deserves to be wider, deeper and more transparent.

Jai Hind. 🇮🇳

Ashok Kumar Singh
Advocate, High Court Calcutta