As the NDA government attempts to change the two-decade-old collegium system under which judges appoint judges, eminent jurists have supported the move, saying it will restore the much needed checks and balances in judicial appointments.
However, they have maintained that the proposed judicial appointments commission should have majority of judges.
The collegium system, which came into existence via a Supreme Court verdict in 1993, has been under attack following former SC judge Markandey Katju’s sensational revelation that three successive chief justices of India allowed a corrupt Madras high court judge to continue at the instance of the UPA-I government due to political pressure from ally DMK.
“Yes, the collegium system must be replaced because unfortunately it has not been working satisfactorily. But the real question is how best it can be done to ensure that only able and independent persons are appointed as judges,” former Attorney General Soli J Sorabjee told HT.
“One way to do it is to have a judicial appointments commission having five or seven persons. But whatever may be the composition, it must have a judicial tilt, i.e. there should be more people with judicial background,” he insisted.
Admitting that the collegium system had failed, noted jurist Fali S Nariman — one of the advocates who argued for it in 1993 — said it was not functioning properly.
Nariman said, “The executive must have a role in any system of judicial appointments. But the preponderance must be that of the judiciary, otherwise we will totally lose judicial independence and the judiciary as an institution will be gravely damaged.”
Law Commission chairman justice AP Shah, who faulted the collegium system for lack of checks and balances, emphasised the proposed judicial appointments commission should have majority of judges and its recommendations should ordinarily be binding on the government.
“The executive should overrule the recommendation only in case the selected candidate fails on merits and the reasons for the rejection should be made known,” he said. “Judicial independence is paramount,” he added.
While supporting the move to scrap the collegium system, chairman of Bar Council of India (BCI), which regulates legal profession in the country, BS Sinsinwar said any proposed body must have representatives of the elected bar.
“Without the participation of the BCI and state bar councils there cannot be fair appointment of judges. It will be a repetition of the give-and-take going on between the judiciary and the executive,” Sinsinwar said. “The bar knows the candidates the best.”
Supporting the idea of involving the bar in the judicial appointment process, justice Shah said civil society should also get representation in the judicial appointments commission.
Asked what could be done to get rid of opacity in judicial appointments, Sorabjee said, “Transparency does not mean the selection process should be nationally televised. But the deliberations must be recorded and should be available when the occasion arises.”
The government has already started the process of consultation with various stakeholders and has written to all opposition leaders to solicit their views on the Constitution Amendment Bill to replace the collegium system.
“We want to bring the National Judicial Commission in which both the judiciary and the executive will be present but the judiciary will have an upper hand. We will bring the bill in an objective manner,” law minister Ravi Shankar Prasad maintained.
Under Article 124(2) and Article 217(1) of the Constitution, judges of the Supreme Court and those of high courts respectively have to be appointed by the President after "consultation" with the CJI. The Government was not bound by the CJI's recommendation.
By a judicial verdict in 1993, the SC introduced the collegium system and effectively took over the primacy in appointments. Then, five years later, a nine-judge Constitution Bench ruled that the "consultation" must be effective and the CJI's opinion shall have primacy in the matter. It has been under attack from politicians, jurists and academicians for opacity and declining quality of appointments.