MC Exclusive: Nowhere in the world does judiciary appoint itself, Harish Salve on collegium system

Criticising the collegium system of appointment of judges in India, former solicitor general and King’s Counsel Harish Salve said, “Nowhere in the world does judiciary appoint itself.”

“I do not subscribe to the belief that if the judiciary is not left free to appoint judges, then the independence of the judiciary will be compromised. These are myths which need to be busted,” he stated.

Speaking exclusively with Moneycontrol, Salve noted that he has always had a sharp difference in opinion when it came to the collegium system. “I was a votary to the National Judicial Appointments Commission (NJAC),” he said.

According to Salve, the United Kingdom has the most independent judiciary and yet they have never had a problem with respect to the appointment of judges. “Judges are not appointed by judges in the UK, they don’t have a problem with this,” he observed.

On being asked for a solution to this, Salve said, “Speaking for myself, what the government should do is come up with an amended NJAC Act addressing one or two issues raised in the judgment (striking the law down) which are of genuine concerns and bring another law. Then on that basis, the government should try getting the judgment reconsiderd.”

The collegium system is the way judges of the Supreme Court and the high courts are appointed and transferred. The CJI, with the four senior-most judges of the apex court, makes the recommendations and sends them to the government for consideration. The government, upon analysis, either takes the recommendations forward or sends them back to the collegium for reconsideration. The system evolved by means of Supreme Court judgments, not by an act of Parliament or a constitutional provision. The First Judges case (1981), Second Judges Case (1993), Third Judges Case (1998) and the NJAC case (2015) evolved the collegium system and upheld it as the law of the land.

In 2014, the Union Government tried to replace the collegium with the NJAC. The Commission comprised three Supreme Court judges, the Union law minister, and two civil society experts. It further mandated that a person would not be recommended by the NJAC if any two of its members did not accept a recommendation. However, it was struck down by the Supreme Court in 2015.

The collegium system has been criticised as being non-transparent and opaque, as the reasons for recommending candidates for transfer or appointment are not made public.