Justice P.D. Dinakaran, presently the Chief Justice of the Karnataka High Court, would probably have become a judge of the Supreme Court of India by now if he had not had serious charges of land-grab and judicial impropriety levelled against him.

While the collegium of judges, consisting of the Chief Justice of India (CJI) and four other senior apex court judges, that recommended Justice Dinakaran is looking into the allegations, the selection process of judges itself has come under a cloud. In fact, eminent jurists, former judges, politicians and others are now calling for a re-look into the whole process of selecting judges.

According to Article 124(2) of the Constitution that deals with appointments of Supreme Court judges, the President appoints every judge and “in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.” Until 1993, appointments to the Supreme Court and the high courts were done after consultations between the chief justices of these courts and the government. In case there was a disagreement over certain appointments, the names were simply dropped.

All this changed with what is called the ‘Second Judges case’ (Supreme Court Advocates-on-Record Association vs Union of India) of 1993. A nine-judge bench of the Supreme Court ruled that only a collegium consisting of the CJI and other judges should have the final say on appointments.

This was further reinforced by the ‘Third Judges case’ in 1998 which changed the composition of the collegium from the CJI and two other judges to the CJI and four other judges. The Supreme Court also ruled that the government is bound by the decision of the collegium when it comes to the appointment of judges — both of the Supreme Court and the high courts.

“The collegium system was invented by the judges, and now that serious questions have been raised against this selection process after the Dinakaran episode, they have to come up with a solution themselves,” says Fali S. Nariman, eminent jurist.

Others agree that the system is seriously flawed. “This is a most unworkable system and it has failed to produce results,” says R. Vaigai, senior advocate and convenor, Forum for Judicial Accountability, Chennai. Adds Rajendra Babu, former Chief Justice of India, “The word ‘collegium’ doesn’t exist anywhere in the Constitution. It’s clearly not a very healthy system.”

Of course, this is not for the first time that questions have been raised against the present method of selecting judges. As early as November, 2008, the parliamentary standing committee on personnel, public grievances, law and justice had asked the government to bring in a legislation to do away with this form of selecting judges. “The committee consulted former justices of the Supreme Court, including chief justices Ranganath Misra and S.P. Bharucha. They were almost unanimous in their disapproval of the collegium system,” says E.M. Sudarsana Natchiappan, Member of Parliament and the chairman of the standing committee.

Experts say that one of the biggest flaws in the current system is its lack of transparency. “We are simply not aware of the basis on which the collegium chooses judges. There is no way of knowing that the judges who are selected to the Supreme Court and the high courts are of outstanding merit,” says Arvind P. Datar, senior advocate, Madras High Court.

Generally, it is considered that senior judges, more often than not the chief justices of the high courts, make it to the Supreme Court. “But what about junior, but very competent judges?” asks Datar. “The collegium has chosen some good judges but it has missed out on many better judges,” says Nariman.

In its 230th report on judicial reforms, the Law Commission of India points to another flaw in the selection of high court judges. According to the government policy, the chief justice of a high court should be from outside the state and the judges who form the collegium are also supposed to be from outside the state. “As a result,” points out Justice A.R. Lakshmanan, chairman of the Commission, “the judges of the collegium are not conversant with the antecedents of the candidates. Hence, the appointments often suffer from a lack of adequate information.”

However, though nearly everyone agrees that the present system ought to be done away with, opinion is divided on what would be the ideal way of selecting judges to the Supreme Court and the high courts. Nariman, for instance, says that the “collegium system should be institutionalised”.

“If there is a regular office with staff, it can look into the names suggested by the collegium and carry out background checks,” he says. According to Nariman, this could be an interim arrangement until the government comes up with a new law on judicial appointments.

On the other hand, Justice Babu is in favour of the process that existed before the collegium system, but with a few changes. “Let the CJI speak to a cross-section of judges, lawyers and others and prepare a list of possible candidates and pass on the list to the Prime Minister. If the PM has no problem with it, the CJI’s list should be approved,” he says.

Others find both systems equally riddled with problems. “Neither the collegium nor the one preceding it worked satisfactorily. What we need is an independent mechanism. Only merit should matter, and nothing else,” says Datar.

“This primacy of the judiciary is blown out of proportion in our country. Nowhere in the world are judges selected in this way,” says Prashant Bhushan, Supreme Court lawyer and member, Committee on Judicial Accountability (COJA), which is calling for major changes to the selection process.

COJA has suggested the constitution of a Judicial Appointments Commission and a Judicial Complaints Commission with representatives appointed by the judiciary, legislature and executive. “These can be independent bodies with an investigative organisation under their control, through whom they can get the backgrounds of the prospective appointees or complaints against judges investigated,” says Bhushan.

Natchiappan says that a transparent selection process is the way forward. “Whether it’s a long list or a short list, let there be an open discussion on the appointments. Let these lists be published on the websites of the Supreme Court and the law ministry. Why should there be so much secrecy?” he asks.

But there are others who are in favour of a status quo. “The collegium has worked very well and it has selected world class judges. I don’t see the need for any change. I think the Supreme Court judges are competent enough to choose the right people,” says Bishwajit Bhatacharya, a senior advocate in the Supreme Court.

The law ministry refused to comment on any possible changes to the law on the appointment of judges. But the government is planning to introduce a judicial inquiry bill in the next session of Parliament that will look into allegations of corruption in the Supreme Court and the high courts.

Will that lead to a change in the way judges are selected? Time, as they say, will tell.