The collegium system, that has prevailed over two decades, could work well with some modifications
The Constitution Bench, in a keenly followed matter, has struck down the National Judicial Appointment Commission (Amendment) Act. The judgment effectively rejects a major law passed by Parliament last year—and ratified by 20 state assemblies—and restores the collegium system of appointing judges to the higher courts. While framing Independent India’s Constitution, serious thought had been given to make the executive, the legislature and the judiciary strong and vest them with necessary prestige and authority, to ensure full democratic freedom. The working of democratic governments across the world makes us realise that the executive, the legislature and the judiciary are not mutually exclusive in their functions and authority, but are rather complementary to one another, though they have clearly defined functions. The Constitution provides for an independent judiciary to resolve the inevitable disputes over the boundaries of Constitutional powers, which arise in the process of governance and has therefore entrusted it with the exclusive power of judicial review. The judgment of the apex court being the law of the land, is binding on all, and one hopes that Parliament and the Government will take this aspect in their stride and instead of coming up with another legislation or amendment, would chose to assist the judiciary to improve the selection process. While some may not agree that judges alone should appoint judges, the collegium system that prevailed over two decades can, nevertheless, with modifications and changes, work well. The Chief Justice of India (CJI)and other members of the collegium, who are virtually the appointing authority, could themselves create a Judicial Appointments Committee to help and advise them in the exercise of their exclusive function of selecting the best hands for the higher judiciary. They may work out the mode and manner of interaction between them. The Judicial Appointments Committee though would have only an advisory role, yet it would be crucial that it may include wide-ranging constitutional dignitaries, for example, chairman of Rajya Sabha, speaker of Lok Sabha, Leader of the Opposition (or the largest single party), representative from the legal profession, the Attorney General for India, etc. In the case of the state high courts, the Advocate General can be the substitute for the Attorney General, besides other representatives of the Bar.
Time has come for an active interaction with those outside the judiciary, to ensure that eligible and suitable persons are not overlooked and, of course, no wrong appointment is made for want of proper information. Though Judicial Appointments Commission, in which the CJI is a member along with two judges—as recommended by Law Commission of India some years ago—could have been a solution, given the amendment was made and appeared before the Supreme Court soon after that, it did not look realistic and failed. Having struck down the amendment, it is absolutely necessary that the judges of the apex court introspect (keeping in view past experiences) and ensure enough checks and balances when appointments are made by the collegium. A crisis of confidence is today threatening the very foundation of every institution; the judiciary is not far behind. The one legacy of the Raj that India could be proud of was an independent judiciary which maintained high standards of integrity. In recent times, the Bar and the public have been hearing instances of corruption, nepotism and other misconduct by judges across the country. The judges may look at the provisions of the Constitution’s 67th Amendment Bill, 1990. The said Bill was rejected; an opportunity of effective reform was lost, and has never come again.
Given the matter is listed for further consideration on November 3, let us hope the best suggestions come forth and are considered by the Supreme Court and the central issue of democratic accountability is addressed.
It is time for the apex court to consider striking down all such Acts which result in the rehabilitation of retired judges, as experience shows this kind of rehabilitation is destructive to judicial independence. The word ‘jus’ (right or law) is the source from which the words justice and judge are derived. The quality of justice cannot rise above the quality of the judge. Public dissatisfaction with the functioning of judiciary is mounting. Judges’general behaviour in the courts is becoming increasingly arbitrary and often lacks the ‘dignity’ attached to such high office. This, coupled with the disturbing reports of corruption in the judiciary, lack of financial integrity, etc, makes consumers of justice insecure. Sunlight is said to be the best disinfectant. Dark deeds are done not just in darkness, but in the secret recesses of power as well. Let us hope that judicial appointments, which has been causing concern to the Bench, the Bar and the public alike, would be kept exposed to sunlight by the collegium and men and women of merit and integrity alone are appointed.
The author is former additional solicitor general of India. Views are personal