Justice JS Khehar, who headed the five-judge constitution bench that restored the collegium system on Friday, said the National Judicial Appointments Commission (NJAC) would result in politicos using their leverage to fill the judiciary with “favourites”.
In the judgment that runs over 1000 pages, Justice Khehar pointed out that 13 states’ governors and one lieutenant governor of a Union Territory had resigned since the current NDA government came into power.
“Could it be, that just like its predecessor, the present political establishment has now appointed its rank favourites? What emerges is, trappings of the spoils system, and nothing else. None of the above parameters, can be adopted in the matter of appointment of judges to the higher judiciary. For the judiciary, the best out of those available have to be chosen,” said the judge.
He added that “it (was) also relevant to indicate, the images of the ‘spoils system’ are reflected from the fact, that a large number of persons holding high positions, in institutions of significance, likewise resigned from their assignments, after the present NDA Government was sworn in”.
“From the above, is one to understand, that all these individuals were rank favourites, approved by the predecessor political-executive establishment? Or, were the best not chosen to fill the slot by the previous dispensation? Could it be, that those who get to hold the reins of government, introduce their favourites? Or, whether the existing incumbents, deserved just that? Could it be, that just like its predecessor, the present political establishment has now appointed its rank favourites? What emerges is, trappings of the spoils system, and nothing else,” the judge added.
The court added that it was not casting asperasions on the current government. “As a matter of fact, its predecessor – the UPA government, had done just that in 2004,” it said.
It added that “the Constitution does not envisage the “spoils system” (also known as the “patronage system”), wherein the political party which wins an election, gives government positions to its supporters, friends and relatives, as a reward for working towards victory, and as an incentive to keep the party in power.”
Saying that considerations for appointing judiciary cannot be changed and cannot be subject to changes in political power and will, the judge added that the collegium system was “the best out of those available have to be chosen”.
“It would be of utmost importance therefore, to shield judicial appointments, from any political-executive interference, to preserve the ‘independence of the judiciary’, from the regime of the spoils system. Preserving primacy in the judiciary, in the matter of selection and appointment of judges to the higher judiciary would be a safe way to do so,” Justice Khehar concluded.