Former Chief Justice of India DY Chandrachud sought to clear the misunderstandings regarding the collegium system, which appoints judges to the Supreme Court and High Court – an intricate process that came under centre’s scrutiny last year.

Speaking at NDTV’s Samvidhan@75 conclave, Justice Chandrachud also spoke about the separation of power between the executive and the judiciary, which had become a talking point in recent days.

The system of appointing judges is very nuanced and multi-layered, and the judiciary has no exclusive role in it, he said, clarifying that the Supreme Court does not singlehandedly finalise appointments.

He said that the collegium system has entrusted responsibility to different levels of state – not government – in a federal system. It involves the high courts and goes past state and central executives. Not just the centre and intelligence agencies, but even chief ministers and governors send their inputs, which are collated and sent to the Supreme Court for their final recommendation.

The Supreme Court has published a set of norms for appointing judges, which include the judge’s seniority and integrity, the need for representation for different regions and classes, he pointed out.

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When asked about the alleged lack of transparency in the process, he highlighted the dangers linked to it. Stating that the process deals with the lives and careers of judges, he said if all the reasons for appointing a judge are put in the public domain, it will affect their ability to perform as judges in the future.

“In the process of transparency, we should not find a solution which will be worse than the disease we seeking to cure. You are ultimately dealing with the lives and careers of people. There has to be a delicate balance between transparency, objectivity, and preserving the candour in the process,” said Justice Chandrachud.

When a recommendation comes from the high court, Supreme Court judges who have worked there are also consulted, he added.

Separation of power between the government and the courts is another topic that Justice Chandrachud spoke on. Acknowledging that this doctrine does come under strain at times, he also pointed out how changing times need modern solutions.

The separation of power doctrine postulates that lawmaking will be carried out by legislature, the executive will carry out its execution and the judiciary will interpret the law and decide disputes.

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The former chief justice said the main area in this is policymaking and in the lack of policies, the courts must step in. He referred to the Supreme Court framing guidelines for sexual harassment at workplace, which was in force until the parliament enacted a law.

Problems may also arise due to inadequate enforcement of law, in which the courts must step in, he said.

“You can say this is a policy issue – whether to shut schools or allow trucks in Delhi. But apart from just pure policy issues, they also raise concerns over fundamental rights. In that sense, courts cannot step aside on every issue and say this is a policy matter that we cannot decide. When fundamental rights are involved, courts are dutybound under the constitution to step in,” added the former judge.

He also highlighted how regulatory agencies are taking over the core function of courts – to decide disputes in special sectors, which he said was a change from the traditional idea of separation of powers.

“The separation of power as a basic concept of democracy is alive and well in our society, but changes have occurred due to the complexities of the modern age in which we live,” he asserted.

Justice DY Chandrachud served as the Chief Justice of India for two years ending November 10, 2024.