Have you heard of a lawyer who regrets having won one of the most important cases of his legal career? Noted jurist Fali S Nariman thinks he should have lost the case which gave the control for appointment of judges to the panel of five seniormost judges in the country.
Nearly two decades after he won the crucial case in the Supreme Court, Nariman, 81, one of the best known legal names in the country, now has doubts on the wisdom and competence of the panel of judges (collegium), responsible for the appointment and promotion of judges in the higher judiciary.
In his autobiography, titled: Before Memory Fades, the veteran lawyer has devoted a chapter to the 1993 case, which he argued and won in the country's top court, leading to a complete change in the procedure for appointment and promotion of Supreme Court and high court judges.
“There is one important case decided by the Supreme Court of India in which I appeared and won, and which I have lived to regret it……it is the decision that goes by the title – Supreme Court Advocates on Record Vs the Union of India,” Nariman stated.
The Supreme Court, in its 1993 judgment in the case reversed its earlier decision of 1981, which had allowed the government dominance in appointment of judges.
Dealing extensively with the case, Nariman has slammed the collegium system, terming it “a closed-circuit network of five judges”, which should be disbanded.
“I don’t see what is so special about the first five judges of the Supreme Court. They are first five in seniority of appointment – not necessarily in superiority of wisdom or competence,” he has noted in the chapter titled : A case I won – but which I would prefer to have lost.
Nariman had criticised the collegium last year in presence of then Chief Justice of India KG Balakrishan for not promoting former Delhi High Court chief justice, AP Shah to the Supreme Court. He also led the campaign for dropping the controversial Karnataka high court chief justice, PD Dinakaran’s name from the promotion list for the top court.
Observing that neither the system where the government had the veto power nor the collegium system, based on three or five judges has worked on appointments, Nariman wondered whether creation of National Judicial Commission could provide the answer.
“The idea of a NJC is an excellent one, but it has somehow not passed muster with parliament on three separate occasions,” he wrote. One of the biggest flaws in the collegium system, according to the noted jurist is the lack of attention on the part of judges who are members of this institution.
“The problem is that not enough attention is given by successive collegiums to the important task of recommending judges, simply because the judges are busy deciding cases,” Nariman stated.