Renowned jurist and senior Supreme Court lawyer Fali S. Nariman underlines the need to do away with the collegium system, talks about why the SC judgment on convicted lawmakers is correct, and why ministers should have defended the Section 8(4) ordinance after Rahul Gandhi’s outburst in an interview to Maneesh Chhibber.
Should the collegium system be replaced?
There are many things in the [Judicial Appointments Commission] bill I may not agree with. But there is no doubt in my mind that the collegium system is not working well. There has been no sense of accountability, or of transparency. It is difficult to start criticising what judges do in their non-judicial capacity, because this is a new and different role that judges have taken upon themselves of recommending appointments/ promotions. We need to understand that the role of judges in this, when it was brought in, was intended to take the government off the back of the people. This is because the government at that time had openly propagated that it wanted a judiciary “committed” to its ideology. This was dangerous. So the judges of the Supreme Court said, rather than let the executive do what they wanted, let’s have this collegium system instead. This was an experiment and it was supposed to work, and it would have, if only people had paid a little more attention. Unfortunately, judges simply don’t have the time, they are so overworked in court. That is why this system has failed. What if the new system doesn’t work?
I am not saying that the Judicial Appointments Commission will be the panacea for all present ills concerning appointments in the higher judiciary, but we have to make the new system work. We could not make the collegium system work and by we, I do mean the collective we. I am not blaming only the judges. The collegium system created two different classes among judges: the first five (or first three in the beginning) — were the superior judges, and then there were the rest. They didn’t know what was happening within the first three or five. If we