COLLEGIUM SYSTEM - CIVIL SOCIETY SUBMISSIONS
Common Cause, in consultation with Vidhi Centre of Legal Policy and Inclusive Media for Change has put forth suggestions for improvement of the Collegium System for appointment of judges to the Supreme Court and the High Courts. The suggestions were given a final shape after a brainstorming session held on November 10, 2015 at the India International Centre in which several of India’s reputed civil society organisations and public spirited individuals participated.
The organisations represented included the Association for Democratic Reforms (ADR), National Campaign for Peoples’ right to Information (NCPRI), PRS legislative Research, School for Democracy, Satark Nagrik Sangathan, Mazdoor Kisan Shakti Sangathan, and Commonwealth Human Rights Initiative (CHRI), among others. This representation was made pursuant to the Public Notice issued by the Department of Justice, on directions of the Hon’ble Supreme Court in an order passed on November 5, 2015 in Advocates on Record Association & Anr. vs. Union of India (WP (Civil) No. 13/2015). The Supreme Court had invited suggestions for the improvement of the Collegium system under the following heads:
2. Collegium Secretariat
3. Eligibility Criteria
The detailed submissions by the civil society are as follows:
1. The Collegium must adopt and publicise an unambiguous Conflict of Interest Policy for persons being considered for judgeship and for members of the Collegium itself. This will help simplify the complaint mechanisms and also help in fixing eligibility/suitability.
2. The proceedings of the Collegium should be open to public scrutiny and RTI compliant in a time-bound manner (the Collegium must satisfy the public, beyond reasonable doubt why certain information should be withheld from the public domain).
3. The candidates’ bio-data and assets (of self and immediate family) should be in public domain (Ample opportunity should be provided for public consultation on short-listed candidates. The process of consultation should be time-bound and not rushed).
4. The Collegium should hold wide consultations and seek public inputs (consultation on shortlisted candidates should be on clear, time-bound and unambiguous parameters).
5. Two retired Chief Justices of the Supreme Court should be made advisory members of the Collegium to avoid cronyism.
Eligibility (Suitability of candidates):
1. Eligibility/ Suitability must include legal scholarship (especially for constitutional matters).
2. Eligibility/ Suitability to be determined on tangible criteria i.e., independence (scholarship, lectures, non-affiliation with political party),quality of work, (quality of judgments written), efficiency (number of judgments written/ time taken), personality (integrity, communication skills etc), record of public service (amicus curiae, work for National Legal Services Authority, PILs, landmark cases) and social sensitivity. Digitization of all data like judgments and pendency rates may improve the appointment process.
3. A judge must never be appointed to a High Court where (s)he practiced.
4. The criterion and the process of shortlisting should be defined unambiguously and diversity of the bench (i.e. gender, minorities and disadvantaged) must be considered.
5. Strict, unambiguous guidelines should be there for the Intelligence Bureau’s background checks.
1. There should be a permanent secretariat to assist the Collegium with a judge of the Supreme Court (not in the Collegium) being in-charge of the administration of the Secretariat as a member.
2. Functionally and financially, it should work under the supervision of the Supreme Court and assist the Collegium in obtaining relevant information of candidates, prepare time frames for appointment, maintain minutes of meetings of the Collegium and be responsible for releasing information to the public.
3. The eligibility to all jobs in the secretariat should be clearly fixed and appointments to them made by the Supreme Court.
4. The secretariat must not become a sinecure for retired bureaucrats.Instead District Court judges may be appointed as Registrars to supervise the day to day functioning of the Collegium as is the practice in the Supreme Court Registry.
1. The mechanism should include complaints against the Collegium in respect of persons recommended or not recommended as judges to the High Court or Supreme Court.
2. An ombudsman should be appointed for transparency and efficiency (with clearly spelt out authority and answerability, independent of CJI and the Collegium).
3. Appointments and complaints mechanisms must be mutually independent because people who make appointments tend to justify them.
4. To avoid false and motivated complaints, the mechanism should be restricted to complaints relating to corruption on the part of the members of the Collegium or a person recommended as a judge, and personal and moral integrity of such persons.
5. The complaints mechanism must be time-bound though not rushed.