'Objection,' My Lords? Ex-Judges, Lawyers Offer Solutions to Collegium Problems

The Quint spoke to experts about the disagreement within the SC Collegium to understand what it really indicates.

The current Collegium headed by CJI UU Lalit.

(Photo: Altered by The Quint)

Amid unverified reports of a 'rift' and speculations over two Supreme Court collegium members objecting to the procedure of judicial appointments, the five-member body released a resolution on 10 October.

"By separate letters dated 01-10-2022, Hon’ble Dr Justice DY Chandrachud and Hon’ble Mr Justice S Abdul Nazeer, objected inter alia to the method adopted in the letter dated 30.09.2022," the resolution read.

The resolution, although being lauded as a welcome move that ushered transparency, does not really allay fundamental concerns related to the collegium system itself, The Quint gleaned from conversations with legal experts.

“Making the resolution public was a good move in terms of transparency but its contents bring up questions about the very nature of the collegium,” former Bombay High Court and Rajasthan High Court Chief Justice Pradeep Nandarajog said.

What was the seeming disagreement about? What problems does this highlight within the collegium? What are the implications of its latest resolution? And are there ways to combat problems with the system?

We reach out to experts for answers.

The Supreme Court Collegium and Its Members: An Overview

The top court's Collegium, headed by the incumbent Chief Justice and made up of four other senior-most Supreme Court judges, decides on the appointments and transfers of judges to the apex court.

Presently the collegium comprises of the CJI and the following four members:

• Justice DY Chandrachud

• Justice SK Kaul

• Justice S Abdul Nazeer

• Justice KM Joseph

Rumours, Reports of 'Rift' & a Resolution

After an in-person meeting of the full collegium to finalise the appointment of ten judges to the Supreme Court could not be convened on 30 September because of Justice DY Chandrachud’s engagements at the court, Chief Justice of India UU Lalit wrote letters to his four co-members (of the collegium) seeking their opinion in writing about the appointments.

While Justices Sanjay Kishan Kaul and KM Joseph wrote back to the CJI approving the proposals, two members – Justices Chandrachud and S Abdul Nazeer – objected to the procedure of appointing and selecting judges through circulation of letters. They, however, did not express an opinion against the names of the candidates circulated by the CJI.

Prior to that, in a 26 September meeting, the collegium had unanimously approved the elevation of Justice Dipankar Dutta to the Supreme Court but had decided that the elevation of the 10 others would be decided on 30 September on the basis of the merits of their judgements.

Three days prior to the resolution, the Union Law Minister on 7 October, had written a letter asking the CJI to recommend his successor. Convention suggests that with only a month left until retirement, the CJI cannot clear any more appointments.

In fact, CJI Lalit too had reportedly cited the same rule as he objected to his his predecessor CJI Ramana giving a go-ahead to two appointments.

The Collegium's 10 October resolution also mentions the Law Minister's letter and adds:

"In the circumstances, no further steps need be taken and the unfinished work in the meeting called for September 30, 2022 is closed without there being any further deliberation. The meeting dated September 30, 2022 stands discharged."

What Does The Resolution Imply?

"The 30 September meeting being discharged meant that the meeting or the grounds of it, stood cancelled and everything that was decided during the 26 September would hold more ground," Adeel Ahmed, Advocate-on-Record at The Supreme Court explained.

This essentially means that:

• The unanimously decided principle of looking at the merits of judgements for remaining appointments would stand ground

• And, the remaining appointments will no longer be made by incumbent CJI Lalit since after the Union Law Minister’s letter and with a month left for his retirement (as per the convention cited above), he can no longer convene the collegium

There is, however, no clarity on the fate of the 10 other judges whose elevation to the Supreme Court was to be decided on 30 September, Ahmed said.

Now that CJI Lalit can no longer clear appointments before his retirement, a decision on what happens to those ten names will be taken during the next CJI's tenure, he added.

'Why The Existing System Might Not Work...' What Ex-PM Narsimha Rao Had Told a Former Chief Justice

“As long as you have the collegium, rifts are bound to happen,” Advocate-on-Record at the Supreme Court Adeel Ahmed told The Quint.

He added that without a more elaborate or a specific system other than the collegium, there will always be differences.

In an anecdote of a dinner with former Prime Minister Narasimha Rao, former Chief Justice of the Rajasthan High Court and the Bombay High Court Justice Pradeep Nandarajog, explained this further.

“When the Collegium system was first brought in, Narasimha Rao told me during a dinner that this system might not work out because unlike politicians, judges are not attuned to handle interpersonal relationships and that has proved to be right. A politician can manoeuvre on an interpersonal level, judges are not trained to do that,” he recounted to The Quint.

“In light of what’s happening, Rao’s prophecy has turned out to be true,” Justice Nandarajog said.

"The underlying reason for disagreements within the collegium can sometimes also be that the judges might have different preferences for candidates," Paras Nath Singh, an Advocate at The Supreme Court, told The Quint.

He also noted that while there is nothing illegal with the CJI seeking opinion over appointments in writing, there is always a possibility of an incumbent CJI and the judge who is next in line to become CJI preferring different candidates.

This may also be true because while the incumbent CJI has inched towards the end of his tenure, the next CJI will have to work alongside those appointed by the collegium.

CJI's Request for Written Opinion Not Illegal, But Differing From Custom: Experts

Chief Justice Lalit’s move, countered by two others, is not ‘illegal,’ experts confirmed to The Quint.

In fact, in the collegium’s Memorandum of Procedures (MoP) asking for an opinion in writing, is one of the methods by which unanimity on appointments can be sought.

But what's also worth mentioning is that although not procedurally wrong, a CJI asking for written approvals and going against the established norm of face-to-face meetings to decide on appointments is unprecedented.

“The norm for the 25 years ever since the collegium was brought in was that physical meetings were held and that become customary law (a custom is followed for so long that it becomes law by precedence),” Justice Nandarajog said.

“When the current CJI sought an opinion in writing, he acted differently from custom,” he opined.

The fact that the entire process of selection and appointment happens at the collegium's discretion and because one cannot question the collegium's meeting or minutes is "what highlights the problems with the collegium," AOR Adeel Ahmed, however, said.

What Could Be A Possible Solution?

Justice Madan Lokur, a former judge at the Supreme Court, suggested in an interview with LiveLaw that the deliberations of the collegium could be video-recorded and archived.

"So whatever each person says is recorded, it is archived, but it is not published or put on radio or TV. If there is a recording, you would not have a problem. That is why this is important," he said on 9 October.

A possible way to avoid such seeming disagreements in the future also lies in having broadly set specific parameters to elevate judges and advocates to the Supreme Court instead of leaving it solely to the unanimity of the collegium, other experts said.

“If the Supreme Court could make a statement saying that these are the broad considerations under which we move — regional representation, seniority, gender, religion or caste — then such disagreements could be solved,” Justice Nandarajog told The Quint.

“Putting down a template guideline out there, would lend greater credibility to the system,” he said.

"The 26 September decision to appoint judges based on their judgements is a step towards a more merit-oriented procedure and personally I think that is a good move,” Senior Advocate at the Supreme Court Sanjay Hegde told The Quint.

Due to this, judges might put in the effort to author judgements succinctly, while being aware that people are not just looking at the correctness of the judgement but also the manner of delivery and the structure, he explained.

“Although the method is still not set in stone, it is definitely a step in the right direction,” he said.