Deepak Dwivedi & AK Sharma
NEW DELHI: The collegium system of appointment and transfer of judges has been criticised many times and found wanting, but recently when eminent jurist Harish Salve launched a scathing attack on it and demanded immediate disbanding of this “arbitrary” practice, the issue got big prominence.
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“No judiciary in the world appoints judges,” Salve said, criticising the Supreme Court’s 1915 judgment invalidating the Narenda Modi Government’s law on National Judicial Appointments Commission (NJAC).
Salve’s salvo against the collegium system assumes particular significance in the backdrop of the fact that it was fired at a panel discussion in which he shared discussions with the recently retired Chief Justice UU Lalit, who defended the system.
Salve’s is one the most lethal and cogent critiques of the existing system of appointment of judges of the Supreme Court and High Courts. Even during discussions on the NJAC Bill in Parliament, no politician, except Prime Minister Narendra Modi himself, had put up such a formidable argument for a transparent mechanism for appointments in the higher judiciary.
As Union Law Minister KIren Rijiju has pointed out, the collegium system does not find any backing in the Constitution. India, he said, is the only country where judges appoint themselves and also decide on their transfers and promotions.
The system came into being by a judgment of the Supreme Court, which was endorsed by a nine-judge Constitution Bench in 1993. The Modi Government brought a law on the NJAC to replace the system in 2014, but it was struck down by the Supreme Court a year later.
Incidentally, the Supreme Court has now agreed to have a relook at its 1915 decision on the NJAC. One of the Justices, Kurian Joseph, who gave the original verdict against the NJAC, openly declared in 2019 (after his retirement) that he regretted the decision.
More recently, while retired CJIs, including Justice Lalit and Justice MV Ramana have battled for the collegium system, others have disagreed. In fact, former CJI, Justice JS Verma, the author of the collegium system who wrote the 1993 judgment, changed his mind in 2004 and said a National Judicial Commission would be preferable.
Most members of the Bar are also ranged against it. In a letter to the President in May this year, the ‘Lawyers For Just Society’ has said the present system “is so seriously the present system “is so seriously flawed that it has virtually made the selection process a mockery”.
(Excerpts of the letter on Page 6&7) The collegium system was also attacked by the Law Commission in 2009 when it said that nepotism and political privilege was rife in the workings of the collegium system.
While independence of judiciary is paramount in a democracy, the judiciary itself giving itself unbridled powers in administration of justice is against the system of checks and balances in all democratic constitutions of the world.
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I don’t want to critcise the collegium, I just want to point out that there are loopholes and there is no accountability. It lacks transparency… if the Govt is sitting on files, then don’t send the files.
— Law Minister Kiren Rijiju on November 25
When someone high enough says that let them do (appointment of judges) themselves… We will do it ourselves, no difficulty. It came from someone high enough. All we can say it should not…Once (names for judgeship are) reiterated then it is the end of the process as per the law. You cannot hold back. It is frustrating. Names are pending for more than one and a half year. How can you say that you cannot clear the names?
SC Bench on November 28