Neither collegium nor a commission judges’ appointment must involve parliament

Neither collegium nor a commission judges’ appointment must involve parliament

Justice J Chelameswar, one of the three senior-most judges of the Supreme Court after the chief justice and, thus, a member of the collegium that nominates additions to the higher judiciary, has penned a note of dissent on the exclusion of Justice Manjula Chellur from the list of high court judges submitted by the collegium to the government for elevation to the Supreme Court.
Ever since the Supreme Court ruled the Judicial Appointments Commission proposed by the government to be unfit, there have been strained relations between the executive and the judiciary. The government has delayed appointments, refused transfers and refused to relent.
One way to look at the standoff is to allocate blame between the two parties. A more productive one is to identify the systemic flaw underlying the standoff.
The ongoing system of appointing judges of the Supreme Court — in which the judiciary alone decides whom to add to its ranks — with the government having the ability to influence the decision by sitting pat on the collegium’s recommendations without taking any action, is neither transparent nor accountable.
The alternative that the previous UPA government and the present one headed by the NDA favoured is to hand over appointment to a commission, whose composition would determine the quality and ideological orientation of the judges.
Neither system meets the requirements of transparency and accountability. When a vacancy opens up for a judge in a high court or in the Supreme Court, eligible members of the judicial fraternity, including lawyers, should be able to formally register their interest.
The chief law officer of the government and the chief justice should be able to nominate judges for consideration. But their appointment as judges must be conditional on confirmation by a committee of the Rajya Sabha with representatives from all the major political parties.Committees of the legislature confirm judges to the Supreme Court in the US and that is a good model to follow. This would make for public confidence in the selection process and rule out any room for partisanship.