Friday, October 23, 2015

Reforming the Collegium

In this recent piece in the Indian Express I argue that with the collegium system restored the primary question now turns to how to improve it.  To be clear, I take no position in the piece (or here) whether the judgement was justified or not or whether the collegium system is a good idea or not - plenty of others have been writing on that.

However, there is no doubt that the collegium process has serious weaknesses - and even the judges admit it needs at least limited reform. The majority in the NJAC case suggests in its judgment that while it would violate principles of judicial independence for "eminent persons" to be empowered voting members on a commission that selects judges, they could serve in an advisory capacity. The judges set a date for a hearing in early November to gather input on how to improve the collegium system and I would imagine this suggestion within the judgement will be a primary point of departure for discussions of reform.

It is still to be seen how open the judges will be to major reforms in the existing collegium system. While there has been much criticism of their judgement striking down the NJAC amendment there has also been significant support, perhaps lessening the political need to concede any significant reform in terms of transparency, accountability, or input. 

Nonetheless, clearly much could be done. The collegium has always been understaffed, lacked sufficient outside input, and been exceedingly opaque. In fact, one of the difficulties in suggesting reforms is how little we know about how it actually functions in the first place. In the Express piece I suggest appointing eminent persons in a manner much like that envisioned by the NJAC amendment to advise the collegium throughout the appointment process. They would not be voting members, but still be integral throughout. This would create a sort of NJAC-lite. While it probably does not make sense to make public every candidate being considered for appointment, once they reach a certain threshold of consideration - whether at actual nomination or just before this formal step - this information should be made public and comment welcomed. Serious and credible allegations against a candidate should be investigated. Certainly there could be spurious allegations towards some nominees, but these would be mostly ignored for being spurious. In fact, getting out in the open baseless accusations can expose them for what they are - improving the current situation where allegations are whispered in the hallways of the court, but never put out to be rebutted.

All of these suggestions for reform can be criticized for being fairly toothless. In the end, it's the judges who still have the power in the appointment process under the NJAC judgement. They can appoint a judge who seems to be of lesser quality or where serious unanswered questions have been raised about their integrity. They don't have to listen to any of the suggestions of an advisory committee. Where's the accountability? Where's the democracy? Why even bother?

Indeed, many of these reforms will only gain  traction if a culture of openness to input and criticism develops within the collegium. That said these mechanisms should provide constant low-grade pressure to push the process towards accountability and decision-making based on some semblance of reason-giving. They also have the chance to set the groundwork for even more substantial outside input in the future. Let's see how serious the Court really is about reforming an appointments system that everyone knows needs to be improved.
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