Amit Bhalla
NEW DELHI: The Constitution of India does not mention collegium system. Its provisions only say that the judges should be appointed by the President of India (the executive) in consultation with the Chief Justice of the Supreme Court, and (in the case of High Court judges) the Chief Justice of the High Court.
In the Sankalchand Sheth case – a robust judge transferred for oblique reasons in the infamous Emergency – the Supreme Court upheld the executive primacy in the appointment and transfer of judges. This view was reiterated in what is known as the Judges Case (SP Gupta case) in 1981.
The collegium system was developed through the interpretation of Article 124 in the ‘Second Judges case’ (1993), wherein the Supreme held that “consultation” with the CJI should be interpreted as “concurrence”.
In the ‘Third Judges case,’ (1998), the SC ruled that the CJI and the four seniormost Supreme Court judges constitute the collegium. Over the course of these cases, the court evolved the principle of judicial independence to mean that no other branch of the State, including the legislature and the executive, would have any say in the appointment of judges.
Despite questions about the unbridled powers in the appointments to the judiciary’s high table, this remained the state of affairs till Parliament passed the National Judicial Appointments Commission (NAJC) Bill in 2014.
The new Constitution Amendment Act scrapped the collegium system of appointment of judges, but the Supreme Court struck it down on October 16, 2015 by a fourone majority on the ground that it violated the basic structure of the Constitution.
However, the Supreme Court also acknowledged that the collegium system of judges appointing judges is lacking transparency and credibility which would be rectified/ improved by the Judiciary. Since then, questions continue to be raised by some members of the high judiciary, including former Chief Justices of India. Justice JS Verma, who created the collegium system with his 30-page judgement in 1993, said he had always said that some kind of modification can be made.
Another former CJI, Justice AM Ahmadi, who had opposed the creation of the collegium system by writing a dissenting judgement, said it was like rewriting the Constitution. In a letter to Prime Minister in 1919, Justice Rang Nath Pandey of the Allahabad High Court alleged that the system was biased and plagued by opaqueness and favouritism. The debate is still on…
FLAWED PROCESS, SAYS LAWYERS’ BODY
The following are the excerpts from a letter written by the Lawyers for Just Society, an organisation that fights for legal rights of downtrodden and vulnerable citizens, to the then-President Ramnath Kovind, Prime Minister Narendra Modi and Law Minister Kiren Rijiju on May 28 this year regarding “flawed selection process of judges in the higher judiciary and seeking reforms.
l As per the current policy, the judges appointed in the high courts are drawn from the Bar (practicing lawyers in respective high courts) as well as from the subordinate judiciary (promotion/ elevation to high courts). The ratio of such appointments is the root cause of all the ills with which our judiciary is inflicted with. A whopping 70% of judges appointed in the high courts are drawn from the Bar and whereas only 30% of judges from subordinate courts are considered for elevation in high courts. We wonder why there be an anomaly like this.
l If the unwritten policy is based on the perception that the members of our lower judiciary does not merit for being elevated as high court judges then in that case it speaks in volume of there being rot in the institution which is required to be remedied. If judicial officers of our subordinate courts does not deserve for being elevated, then why litigants be made to suffer in the hands of such judicial officers?
A whopping 70% elevation of members of the bar to the higher judiciary, which is neither regulated, nor transparent and/or based on any sound written policy leads to disastrous consequences. There is absolutely no transparency as to why and how the names are recommended, who recommends and what are the parameters for the names being recommended for elevation in the high courts, are all issues which remains shrouded in mystery forever.
Experience have shown that the entire process of selection of high court judges is so seriously flawed that it has virtually made the selection process a mockery.
A few suggestions, if taken into consideration will go a long way in completely revamping our judicial system which is required to be occupied by the most competent, efficient and honest judicial officers and which is also the fundamental right of every citizen. Some of the suggestions which the Government of India may consider are as under:-
Complete revamping of the selection process – right from the first court in hierarchy to the top court in the country
Judges be drawn in the high courts only from the lower judiciary and drawing members from the Bar be either eliminated completely or the same be brought down to 5%.
Enacting a thoroughly transparent and robust system, based on a legislation of appointing judges in every courts
Performance of judicial officers be regularly evaluated
Elimination of designating senior advocates
Implementing 100% transfer policy, especially in the higher judiciary.
Faceless hearing – same as in case of hearing of income tax appeals.
Live streaming and recording of every court proceeding.
