Union Law Minister Kiren Rijiju has once again picked a bone with the judiciary when he criticised the collegium system of appointment. This time he used colourful words to show that what was in vogue in the name of collegium was uncles appointing nephews and nieces. He argued that the collegium did not have the infrastructure to find out the best candidates for the posts of judges of the high courts and the Supreme Court. In the absence of such a machinery, the collegium was bound to choose only those whom its members knew accidentally or otherwise. The vast majority of the lawyers whom they might not have met would not be considered for the post of judges. In other words, they have to choose from a small basket of lawyers, whereas the country expects the best talent to be picked up for the highest judicial posts.
What the minister said is nothing new. In fact, he has articulated the same viewpoint in different ways using different fora. He is not the only person who subscribes to the view that the collegium system is a disaster. Vice-President Jagdeep Dhankhar is one person who has openly spoken against the collegium system. In fact, he flayed the judiciary for declaring unacceptable the law enacted by the Modi government to set up a judicial commission to invite applications and choose candidates for such posts. There are many other ministers who have come out against the collegium. Interestingly, Kiren Rijiju has argued that a majority of the people support the government stand. The government does not have any statistics to suggest that either the collegium or the judicial commission has the people’s support. Even if all those who voted for the BJP are considered to be votaries of the proposed commission, allowance has to be made for the fact that they do not constitute 50% of the voters.
True, the collegium system came into being outside of the Constitutional framework. In fact, during the period when the Congress enjoyed majority and it had leaders as strong as Jawaharlal Nehru and Indira Gandhi, it was the government which selected judges of the Supreme Court and the high courts. Then came a series of coalition governments headed by leaders like IK Gujral and HD Deve Gowda when circumstances forced the judiciary to exercise greater clout and have the power of appointment of judges snatched from the government. The fact of the matter is that the weak governments could not assert themselves. By the time a strong leader like Narendra Modi came to power at the Centre, the collegium system had got fully entrenched. It did not want to part with the power of appointing judges. The judges had the confidence even to shoot down the proposal of the judicial commission.
Nobody in his senses says that the collegium system is foolproof. It has its weaknesses. Some of the judges it selected were found to be thoroughly incompetent, and against whom the Chief Justice of the Supreme Court had to take action. Yet, if it finds acceptability among a large section of the population, it is because of the miserable condition in which the government functions. The ruling party has been filling all posts from governors to chairmen of public sector undertakings to vice-chancellors to members of various commissions and committees with its own members or like-minded persons. The party does not want to give even the post of deputy speaker to the opposition party. Seen against this backdrop, the government has only itself to blame for the growing popularity of the collegium.
The law minister is not correct when he claims that the government has no say in the appointment of judges. There have been umpteen cases in which the government sat on the proposals mooted by the collegium, only to ensure someone or the other does not become senior enough to reach the post of chief justice. There are also indications to suggest that the government is able to get away with pressurising the collegium to have its nominees appointed, as in the Madras High Court. The minister would have made greater sense if he had introspected and claimed that no nephew system prevails in the government.
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