The dark secret of how Collegium may be rigging judiciary perpetually

Is the Collegium silently taking over India’s judiciary for good?

Much has been written, including by me[1], about how:

• The Collegium system of judicial appointments is a distortion of constitutional intent,
• It has usurped powers never assigned to the judiciary by the Constitution,
• It has enabled the self-perpetuating elite to dominate the higher judiciary.

Add to this the chronic delays in justice delivery, which not only deny citizens their rights but also deter foreign investment and stunt GDP growth, another crisis in its own right.

But this article goes a step further: it explains how the Collegium may be quietly rigging the future of India’s judiciary, perpetually.

A guardian turned owner

The judiciary is meant to be the final guardian of democracy. But when it shields itself from all scrutiny and centralizes power, it risks becoming the autocratic owner.

SC has interpreted the Constitution in ways not mentioned (nor meant) in the Constitution, and much worse, interpreting it to mean the exact opposite of what is stated in the Constitution, as elaborated by Arun Jaitley in the Parliament.

Articles 124 and 217 say judges are appointed by the President in consultation with the CJI. SC reinterpreted “consultation” as “concurrence” (just the opposite of dictionary meaning), dummying the President and the Parliament, “Chief Justice” as “a Collegium of judges”.

It struck down the NJAC Act lock, stock, and barrel, passed unanimously by the Parliament and ratified by the states, without even giving an opportunity to correct any flaws the SC may have perceived, thus restoring the opaque Collegium system.

The government’s role is now symbolic: it may return a recommendation once, but a reiteration by the Collegium makes it binding, regardless of any kind of objections.

This is not judicial independence. It is judicial exceptionalism.

Dynasty of ideology is as bad as dynasty by blood

True, there may be no dynastic succession exactly since judges don’t promote their own children (though it also happens in indirect ways). It happens by in-breeding within a closed circle of ideological continuity.

Each Collegium knows exactly which of its nominees should eventually become a future CJI, on what date and for how many days, based purely on date of birth and seniority in judicial appointment.

Their performance doesn’t matter; once appointed, the path is set. No other profession, esp at this highest level, guarantees promotion regardless of merit.

Thus, today’s Collegium effectively scripts the judiciary’s leadership forever, a self-reinforcing ideological lineage that perpetuates itself in silence.

Is that all? No. There is something even more dangerous.

The opaque shield of impunity

Apart from general whispers of corruption in the higher judiciary, specific allegations of corruption have come up against some judges. But when the judiciary handles these internally, judges exclusively investigating other judges, without public scrutiny or independent oversight, it raises grave concerns.

If future Chief Justices and senior judges owe their rise exclusively to today’s Collegium, can we expect them to act impartially if cases arise against their benefactors? Even if they do, will the public believe it?

Will the judiciary be open to admitting corruption within the judiciary?

This isn’t a question of individuals, but of a system engineered to reward loyalty and shield itself from consequence. It’s not just a lack of accountability, it risks enabling dynastic impunity.

Politicians, including the PM and CMs, face transparent electoral and judicial scrutiny. Judges too must.

The seniority trap

One disturbing trend: When the government approves the list of Collegium-recommended names for appointment, based on the time it takes for approvals on a case-by-case basis, the Collegium objects, not only to the names, but even to the exact sequence of approvals.

Why? Because the order determines seniority, who becomes CJI, when, and for how many days.

This shows the Collegium may not be just recommending judges for appointment; it may be pre-designing the entire future hierarchy of the judiciary, including CJIs and future Collegiums, forever and ever. Have we heard of such succession planning in any other profession, anywhere in the world?

We are not making any specific allegations against any individual. One hopes sincerely that such outcomes are unintended, but the sad reality is that there is no way to be so sure, because the system is opaque, shielded from public gaze, and unaccountable to anyone.

And in matters as vital as the judiciary, even the possibility of such manipulation is unacceptable.

But we have a system where it is not just possible, but plausible too.

The great irony is that a system created to protect judicial independence is now enabling capture from within.

Warnings from within

• Justice Ruma Pal called the Collegium’s workings “mysterious and arbitrary.”
• Justice Chelameswar warned against its secrecy in his landmark dissent.
• Justice Kurian Joseph declared the system a failure and demanded reform.

When senior judges raise such red flags, we must take notice and keep the pressure on the judiciary.

The path forward: A transparent and balanced mechanism

We are not arguing for political interference in judicial appointments. Far from it.
We want a judiciary that is fiercely independent, but also transparent, accountable, and inclusive.

The need of the hour is:

• A neutral judicial appointments commission. If the NJAC was flawed, the SC can point out the flaws, and ask the legislature to correct them and re-present the NJAC. The SC should do it suo moto, forthwith, as the SC is responsible for the current, more flawed system.
• Transparent criteria for selection and promotions, such as judicial performance, integrity, professional competence, and diversity.
• Public disclosure of reasons for appointments and promotions, at least after decisions are made.
• Meaningful checks and balances so that no single group, be it politicians or judges, can monopolize appointments.
• A succession system that should not be predictable about who will become the CJI far into the future, taking into account the performance of the judges.

The way forward: Restore balance, not control

The solution is not political interference, but institutional balance:

• Revisit NJAC, suo moto: SC should point out the flaws it perceives in NJAC and invite Parliament to correct them. The Collegium system is far worse.
• Transparent selection criteria: Judicial competence, ethics, performance, and diversity must be the yardsticks, not just insider recommendations.
• Disclose reasons for appointments, at least after finalization.
• Prevent predictable successions: No one should be able to chart who becomes CJI in advance.

A call to conscience

We, the citizens, along with the Bar Council, Senior Advocates, and lawmakers, must demand the above and keep the pressure on the SC till it relents.

If political power must be temporary and accountable, why should judicial power be permanent and self-assured, passed down like inheritance?

For the sake of justice, the Indian Republic, and the future of Indian democracy, the Collegium system must go.

Note:
1. Text in Blue points to additional data on the topic.
2. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.

Reference:

[1] Why the Supreme Court is dead wrong and what it can do – Mar 17, 2023, PGurus.com

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