The Collegium or The Commission?

                                                            The Collegium or the Commission?

By

J.L. Gupta

Article 124 of the Constitution Inter alia provides that "every judge of the Supreme Court shall be appointed by the President after consultation with such of the Judges of the Supreme Court and ..... as the President may deem necessary for the purpose ..." This provision was considered by various benches including a Constitution Bench of nine judges in the special Reference from the President of India. After consideration of the earlier decisions, it was inter alia held that "the chief justice of India must make a recommendation to appoint a judge of the Supreme Court and to transfer a chief justice or puisne judge of the High Court in consultation with the four senior most judges of the Supreme Court. ....." Thus, the concept of a Collegium in its present form had materialised.

 

The decision of the Supreme Court has been followed for a fairly long time. However, the government has now approved the bill "which entails replacing the Collegium system with a Judicial Appointments Commission wherein it will have a say in the appointment of judges of the Supreme Court and the 24 high courts." Mercifully, it has not been suggested that the Collegium system failed to select the best from the Bar and the Bench. The declared objective is only to “have a say in the appointment of judges.”

Does the government really have no say under the existing collegium system? It is indisputable that the recommendation of the collegium is sent by the Chief Justice(Supreme Court and the High Court as the case may be) to the government. It is examined at different levels. If anything adverse comes to its notice, the government forwards it to the Chief Justice. The matter is reconsidered. The view is again conveyed to all concerned. Thus, it is not correct to suggest that the government has no say. The basic premise for the Bill is, thus, non-existent.

Still more, would the proposed Commission be a better alternative?   According to the reports in the media, it is proposed that the Commission shall have 7 members out of whom 3 shall be from the Judiciary. The remaining 4 shall be the Law Minister, the Secretary (Justice) and ‘two eminent persons’ who will be nominated by a committee. Will the ‘eminent persons’ be in a position to select and recommend persons for appointment to the Supreme Court and the 24 High Courts in different parts of the country? What shall be their qualifications? None have been indicated. Thus, various issues arise and need to be examined. Why is the government in a hurry to fiddle with the existing system? Nothing should be done in a hurry at a time so close to the elections.

Above all this, it is a known fact that the government (at the centre as well as in the States) is the single largest litigant in the country. Should a party or a litigant have any say in the appointment of judges? In my view it's only fair that a party should not be allowed to choose the persons who will examine its conduct or the validity of its actions. If the recent events in the country are any guide, it is obvious that a minister had to resign as his action had not been favourably commented upon by the court. In view of the recent events in the country, the real motive behind the action of the Government is highly suspect.

And then, let us remember that Justice is the first promise that the constitution makes to the people of this country. Yet, it is the last item in the union budget. The constitution envisages an independent judiciary. Yet, it is dependent upon the executive for finances. Still, has the judiciary in India not performed despite the financial fetters, ‘court stripping’ and the media’s monitoring? Has it not protected peoples’ life and liberty against the might of the state? Has it not acted against the arbitrariness of the executive? To whom do our leaders look up in the hour of need?

Yet, there is a constant clamour against the courts. Some decades back, the slogan was “committed judiciary.” Today, it is judicial accountability and transparency. The Judiciary remains a popular punching bag. It is no wonder that the ‘Judicial Standards and Accountability Bill’ and the bill for judicial appointments commission are on the anvil.

 

The critics need to remember that the judges do not work in closed chambers. Their judgements are not ‘confidential’ or ‘secret’ documents. The court proceedings are held under public gaze. The judges give reasons for their judgements. The decisions are subjected to serious scrutiny by the higher courts.  Even at the highest level, the Rules permit a petition for review. Still more, the Supreme Court has by a judicial order introduced the remedy of a curative petition. Thus, there are inbuilt checks on the exercise of judicial functions.

 

It is believed in certain quarters that the Collegiums look at only the professional competence or income of the lawyers. Is it so? I think, no. Equally, untenable is the belief that persons with long tenure alone can make a contribution. Sometimes, a long tenure can be a bane and a short one a boon.

 

There are various issues concerning the economy, the welfare of the people and the eradication of corruption that deserve attention. The desire of the government to have a say in the appointment of judges can wait. It may be debated and examined by the parliament after the election. Nothing need be done in such hot haste especially when the government’s conduct is under scrutiny of the Court.