With law minister Kapil Sibal having said that the judges appointment system was opaque, this system of appointments has once again come under the scanner. There has been discussion on this issue in the last few years, with successive law ministers and others having expressed dissatisfaction with the present system of appointments but there has been no progress on any proposal to bring about a shift in the system. Changes in the system of judicial appointments are not without dangers. At present, the collegium system of appointments operates, adopted after the significant verdict of the apex court in the Advocate on Record Association vs Union of India and Others case of 1993, in which it interpreted the constitutional provisions for the appointment of judges to establish the supremacy of the judiciary in the selection process over that of the executive. The collegium comprises of the Chief justice of India and a few senior judges of the Supreme Court and includes senior judges of the High Court at the time of selections for the high court. A positive outcome of this system of appointments has been to reinforce the insulation of the judiciary from political processes. It may be recalled that around the time of the Emergency there was dangerous talk of a ‘committed’ judiciary according to which only judges with a certain ideological and political orientation were to be appointed to the judiciary, which would presumably mean judges who were subservient to the party in power. This would have effectively undermined the judiciary by allowing its politicisation and by placing fetters on its independence.
The collegium system has halted political interference by the executive in judicial appointments. Yet the present system is not without its flaws for it leads to a situation of judges appointing themselves in a process that is not transparent and is on the basis of undisclosed criteria in largely unknown circumstances. This at times leads to an arbitrary selection of judges and there have even been accusations of favoritism and nepotism. There is therefore a need to rethink the system of appointments but not in a way that would allow the political executive to undermine judicial independence. In many countries independent commissions select judges on the basis of fair criteria and this must be considered. An idea mooted is that of an all India judicial service selected through a competitive examination to man the higher judiciary but as this removes all elements of patronage from the system, vested interests ensure that it never takes off despite it being repeatedly endorsed and possibly being the best option.