The Collegium or
the Commission?
By
J.L. Gupta
The
founding fathers had created a judicial pyramid. The subordinate courts were
the base. Then the District Courts. The High Courts at the State level. The Supreme
Court was placed at the Apex. They also laid down the procedure for selection
and appointment of Judges. So far as appointments to the higher judiciary are
concerned, the matter was considered by the Supreme Court in ‘Supreme Court Advocates on Record
Association vs. UOI’ (1993) 4 SCC 441.
The
dictum has been followed. Judges have been selected by the Collegiums and
appointed as Judges and Chief Justices in the High Courts and the Supreme Court
for some time now. The scope of
interference by the political executive has been reduced to the minimum.
Resultantly, criticism from different quarters is understandable. There is talk
of setting up a Commission. What is the basic complaint? Will the Commission
improve the quality of judges?
No
system of selection can be perfect. A fact which deserves mention is that the
Constitution itself provides for having the Union and the State Public Service
Commissions to make selections for the various Services. The Commissions have
been in place. Has the performance been beyond reproach? Have these commissions
not been described as the ‘personal service
commissions’? The kind of eminent persons, who are
proposed to be included in the JAC are usually members of the State and Union
Commissions too. Yet, what do we have? Petitions in the Courts alleging all
kinds of malpractices. Still more, States have moved petitions, prosecuted
Members or Chairmen of the Commissions for different irregularities. Would a
similar Commission for Judicial Appointments change everything? Looks unlikely.
Secondly,
State is the single largest litigant in the country. Should a litigant have any
say whatsoever in the choice of judges? I think No!
Thirdly,
in a democracy, independence of Judiciary is of paramount importance. A
fearless and independent Judiciary is a basic feature of the Constitution. It
should not be sacrificed at the altar of executives’ ego.
It
is believed that the Collegium does not have the mechanism to ‘verify the character and antecedents of
Judges.’ I think, it is not so. The Court or/and
the Chief Justice can always ask the concerned agencies to do the needful. In
certain cases, it has been actually done. I think, the fear is unfounded.
Sometimes,
it has been suggested that the Judges indulge in mutual give and take. As a result,
some people who should not have become Judges at all even got elevated to the
still higher positions and Courts. Assuming it to be correct, can anybody put
his hand on his heart and say that as a people, we are impervious to all kinds
of political and social influences? Has it never happened that at the highest
level the files are held up till the name of a particular person is cleared? Still
more, do we not insist upon representation for every caste, creed and Court at
every level? In such situations, mediocrity has prevailed over merit.
Unfortunate. But is JAC the solution? No! A rare exception under the Collegium
system can become a rule when final word is left with the executive. Are the
series of scams and scandals that have taken place in the recent past in India not
enough to teach us a lesson about the level of political morality? And then,
Judiciary is one institution in India that has delivered. It has performed. We
can tinker with it only at our own peril. Let us not do so!
Interesting piece...swimming against the tide.
ReplyDeleteI don't agree with either of the methods be it a collegium or the JAC. Especially, the present method of selection which is nothing but inbreeding. Besides rank mediocraty the collegium process has ensured the formation of a small clique/ class within the courts who take care of each other in every possible manner. I will say that one has to have a very strong political backing or one needs to be on hype right side of the collegium to be elevated at the right time or else if one is too bright and meritorious then the call will come late, if it does come. Historically, political appointments have been better, maybe because at least half of them were on merit. I think there need to be a transparent process where the bar should also have a say besides the collegium and lastly a body like JAC. The process can be the following:
ReplyDelete1. Any body can apply as is done for any other post.
2. Bar body should give its comment.
3. Collegium should give its opinion both on competence and character. The comments should be for public scrutiny. The reasons for accepting or declining an application should be made public.
4. The Govt. Should then give it's report both on competence and character.
5. Finally, the JAC like body should then take a decision in a transparent manner. Open to scrutiny.
If collegium process is continued in the present manner the dispensation of justice, as a concept will be history, which in any case has taken a back seat over disposal of cases. The judges of the present with few exceptions have no concept of justice or fairness or impartiality. They have killed the criminal justice completely.
Uncleji, you have presented your case with conviction and clarity. That is your forte.
ReplyDeleteMany people like myself do not want the practice of “Judges appointing Judges” to continue. Times have changed and people want accountability and transparency in the judicial system. “We the people” who are paying to maintain this snobbish collegium club, would like to have a say in the selection process. The system has outlived its utility. A closed-door affair without transparency is no longer tolerable. This two decade old tarnished, controversy ridden and opaque judicial system must end. Former Supreme Court judge Ruma Pal, said about this selection process as “one of the best kept secrets in the country”.
The system has nothing to do with the Constitution. The Constitution Articles 124(2) and 217(1) say that the appointment of Supreme and High Court judges should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. By a judicial coup in 1993, the SC established the primacy and supremacy of the collegium system in the appointment of judges to the higher courts thus placing the system above the Constitution stipulations.
In my view, the problem with judiciary is that it considers itself above all others. It does not want to be judged by non-fraternity members. It loathes public scrutiny. The trust of public in the legal profession is low. It is often said that 98 percent of its members give the remaining 2% a bad name. Even former CJI K. G. Balakrishanan once said, but later backed off, that his post was not being that of a public servant, but that of a constitutional authority.
The collegium system called judicial usurpation by many, but defended by judges by invoking judicial independence, has lately been under attack for its opaqueness. Modi government pushing for a Bill to replace the collegium system with a JAC, headed by the CJI, two senior-most judges of the Supreme Court, the Law Minister, Secretary in the Law Ministry as Convener and two eminent non-legal background citizens. This Bill had its rounds. It was initiated in 2003 by none other than then NDA law minister Arun Jaitley and again re-introduced by MMS government last year.
If this Bill ushers a transparent procedure for the selection of higher court Judges then it is a welcome step.
While on the subject of judicial reforms, I would be interested to have your esteemed views on the colonial tradition of long summer breaks for the higher court judges even when piles of pending cases awaiting to be cleared. The last count of pending cases in the SC is over 64,000 (1 April 2014) and over half of these are pending for more than a year.
ReplyDeleteCJI Lodha’s recent proposal to make Indian judiciary work throughout the year in order to reduce pendency of cases in Indian courts is a path forward. His proposal will not increase the number of working days or working hours of any of the judges. It just entails that different judges would go on vacation during different periods of the year.
The Bar Council of India has rejected his proposal mainly because it would inconvenience the advocates who would have to work.
What will go wrong with advocates working throughout the year? All the other professions do.
Jai Hind
I cannot comment on the merits of one system vs the other. I think both will have pros and cons. Key however is that whatever be the system, it should be transparent. Justice in selection of judges should not only be don but seen to be done.
ReplyDelete