The Collegium system for appointing judges has been under attack by the government. It is also the case that this system has a tenuous foundation in law. The legitimacy of the system, such as it is, rested entirely upon institutional practice and the trust that, all things considered, this system was likely to produce a judiciary that was both more independent and of higher quality. The trust in the Collegium system had been frittered away over the years by the manner in which the judiciary conducted its own affairs. The Supreme Court put itself in a position where doubts could easily be cast both on its excellence and its independence. But there was still a residual trust in the judiciary as the lesser of two evils. But the conduct of the Supreme Court over the appointment of Justice Victoria Gowri is yet another spectacular own goal.
The issues in this case should not be seen in the context of a particular individual. Let us, for a moment, put aside the question of whether Justice Gowri is worthy of appointment. Instead, focus on the institutional dynamics at play. The first is an odd structural situation where the Court becomes a judge in its own cause. It is true that the petition challenging the Justice’s appointment was heard by judges who were not part of the Collegium. But this is, as Gautam Bhatia has forcefully pointed out, a case of the Court sitting in judgment of its own decision, where the bench is constituted by the Chief Justice who is party to the decision. This is a total legal anomaly, to put it mildly.
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The second issue is the question of what facts about a potential appointee are placed before the Collegium and the process by which it is done. If it has the power to recommend appointment, it has to have all the means and process to ensure that full due diligence is done on the candidates. Yes, sometimes honest mistakes can happen. But in this case, if the Court was confident of the procedures by which it vets candidates, there was no reason to for it to go through the motions of a hearing challenging the appointment. The drama of a hearing has more of an appearance of a charade. If it was not confident of its process then it needs an honest reckoning with how it vets candidates and assesses competence. There is something revealing about the passive construction we put on the Court’s grounds for conducting a hearing in this matter. The ostensible grounds are that certain facts might not have been placed before the Court. This is an admission of sorts, that the processes may not be designed to actively seek out all the relevant facts. Either way, the Collegium looks bad.
But it gets worse. The Court admits a challenge to the appointment, but then put the presiding judges in an impossible position. First of all, it is not clear what a judicial review of suitability of a candidate might actually mean. Would judges more junior in the Collegium be now put in a position to pass judgment on their seniors? And what is the legal yardstick of suitability here? And then, to make a mockery of the process, the bench cannot be constituted before the judge has been administered the oath of office. So the judge will have to be removed by a process of impeachment anyway. So what is all this about: A hearing that is meaningless, has no serious judicial basis, and whose outcome is foregone? Is this tangled web a product of carelessness or complicity? Who can tell? But it is certainly a very odd way of the Court trying to secure legitimacy.
But this is part of a pattern. Take another appointment issue, the elevation of Justice Saurabh Kirpal. Again, focus on the institutional issue. The Court is right to insist on his appointment if they are convinced he is a suitable candidate. It is also vitally important for the Court to insist on the principle that he cannot be denied appointment on grounds of his sexual orientation. But the Law Minister was not entirely wrong in suggesting that there is something odd about the Court making public the material contained in the IB report. The Court should be free, and ought to reject IB reports. The IB cannot have a veto, nor is it the final word on any official’s suitability. The Court could have simply said it does not find the IB report convincing. But to reveal its contents sets up a terrible precedent. It violates the confidentiality that defines the meaning of this process.
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I may, for instance, reject a confidential referee’s report as not being well argued. But I cannot undermine the process of confidential refereeing by revealing its contents. I sympathise with the urge in the Court to stand by a candidate who, on the face of it, is being wronged by the system. But the effective way to do it is not to gut the protocols, especially when it is unnecessary for achieving the objective. Do other candidates recommended by the Collegium but not appointed by the government also acquire now the right to find out whether their IB report was fair? Again, the Court may be taking the right position but with some potentially self-undermining grandstanding.
There is another issue here on which there is all-round bad faith. We have no justiciable standards for what makes a suitable judge. How much should a potential judge’s writing or political activity before their becoming a judge be taken into consideration? A blanket rule saying all that is irrelevant will seem as unsatisfactory as a rule giving them undue credence. What form of speech is merely political and what shades into hate speech? What is a potential test of impartiality? And we know in so many cases, judges reveal themselves after the fact, as it were.
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There is, in all these matters, no option but to exercise all-things-considered judgments. It is illusory to think that there can be design fixes or rules that will do the job. The tragedy of this case is that the Collegium has lost trust on all counts: Its processes and its sense of judgment. The Supreme Court has undermined its own legitimacy at the worst moment possible, where even those opposed to the executive are wondering what the Collegium is up to.