Collegium system is not perfect either

Collegium system is not perfect either

FPJ BureauUpdated: Saturday, June 01, 2019, 02:05 AM IST
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We have no intention of opening ourselves to the charge of contempt of court. Yet, the on-going tussle between the legislature and the judiciary over the appointment of judges to the high courts and the apex court is an important issue with a bearing on our system of governance and, therefore, invites comment. In one word, it is turning out to be a turf war. Till 1993, the executive had an upper hand in the appointment of judges to the high courts and the Supreme Court. After a strange re-reading of the word `consultation’ to mean `concurrence’ the apex court snatched the executive’s right to make those appointments, reducing the latter to a virtual mute bystander. Top five SC judges now made those appointments in a less-than-transparent manner. On Thursday, the five-member bench hearing the challenge to the constitution of the National Judicial Appointment Commission from the bar associations rhetorically posed the question as to which wrong appointment had been made by the collegium. And the bench went on to approve this system of appointment by remarking that a mistake here and there could not mean that it was bad. Very well, then. The same argument could have been made to justify the previous system. The executive too had made a few mistakes while appointing hundreds of judges since the founding of the Republic till its abrupt end due to the apex court’s interpretation of the Constitution in its own favour. Conflict of interest immediately comes to mind since the judges hearing the case cannot be normally expected to rule against themselves. But, then, no other system is available to adjudicate the matter impinging on their right to appoint judges. Therefore, the court must hear the on-going case in as dispassionate a manner as is humanely possible.  Should it begin with the premise that no one system of appointment is perfect, there can be an ample scope for improvement and a further fine-tuning of the system. In other democracies, judges certainly do not enjoy primacy in making these appointments. Why, in the US the executive makes these appointments, and the nominee-judges are put through a severe process of scrutiny by the Senate at hearings where the antecedents and judicial record and philosophy of such nominees is closely questioned.

The principle of seniority does not operate in these appointments. In the UK, even common citizens are associated in the appointment process. In short, the judges appointing judges is a system peculiar to India alone and the handiwork of a questionable interpretation of the Constitution. Admittedly, it is possible for rotten eggs to slip through any system, whether it is the collegium or the pre-1993 system. The NJAC system, proposed through a constitutional amendment, under the circumstances, offers a golden compromise. Half of the members of the proposed NJAC will still be judges. Aside from the incumbent  law minister, the other two positions on the NJAC would belong to `eminent persons’ in the selection of whom the chief justice of India will have an important say along with the prime minister and the leader of the largest opposition party in the Lok Sabha. Raising objections to such an NJAC, which will still be dominated by judges, can only mean that the apex court is unready to share a wee bit of power it had unfairly and unjustly appropriated by interpreting the Constitution in its own favour. We  make bold to say that if the record of judges appointed till 1993 was mixed, so has been the case with  appointments made since then.  Indeed, sharing the decision-making process can absolve the judges of blame for an occasional bad decision. It is notable that the harshest criticism so far of top judges had not come from politicians or from members of the public. No. Noted lawyers Shanti Bhushan and Prashant Bhushan had claimed in a signed affidavit before a bench of the apex court itself that at least half- a-dozen former chief justices had been lacking in financial integrity. It is significant that despite such an open affront to the dignity and prestige of the highest court in the land, the apex court has failed to proceed against the Bhushan duo. The point is that the appointment process of judges cannot remain a closed-door affair between a few judges, while the people have no clue whatsoever regarding the pros and cons of these selections. The court must not treat the on-going NJAC case as a turf war but consider the experience in other democratic countries before coming to an independent and fair decision.

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