Legal Eagle: Replacement of collegium system may be in the offing

It is not improbable that a new legislation with ingredients of the defunct NJAC Act or another Constitutional amendment, which may dilute if not replace the collegium system, is being mooted

Olav AlbuquerqueUpdated: Thursday, November 17, 2022, 10:59 PM IST
Representative Image | File

The suggestion mooted by law minister Kiren Rijiju last week to set up an in-house committee to monitor the oral remarks made by judges during hearings is a direct infringement of judicial independence. This is because during adjudication, judges have to ask questions, cut short repetitive arguments, retort sarcastically to lawyers’ remarks or occasionally threaten senior advocates with contempt action if they browbeat judges. His warning that the government would not remain silent forever in tolerating the opacity of the collegium system implies we must be ready for change.

For the uninitiated, judges are immune from criminal and civil action while discharging their judicial duties, which include their oral remarks made in courts. Even though defamatory, these judges have to ask impertinent questions to elicit the truth or find out what the government may sometimes want to hide. Unlike the inquisitorial system of foreign countries, our adversarial system of adjudication forces judges to rely on the prosecution versus the defence to ferret out the truth.

The Judges (Protection) Act (JPA), 1985 and Article 121 of the Constitution ensure that judges’ conduct within their courtrooms cannot be discussed in Parliament or the state legislative assemblies. The Constitutional and statutory protection in laws such as the Indian Penal Code bolster this protection. The very idea of setting up an in-house panel to monitor oral remarks by judges in their courtrooms will violate these laws.

When Trinamool Congress MP Mahua Moitra made a fiery speech about Rajya Sabha MP and former CJI Ranjan Gogoi, the treasury benches sought to shout her down. But Mr Rijiju’s suggestions of allowing lawyers to address the Supreme Court in Hindi or another vernacular language is impractical because judges from the Madras, Kerala or Andhra Pradesh high courts are not fluent in Hindi.

Mr Rijiju added that judges spend more time in deciding who will succeed them in office, rather than delivering quality justice — indicating that a change in selecting judges is in the offing. The Law Minister added that between 40 and 50 senior advocates monopolised litigation in the Supreme Court because of their fluency in the English language; hence, it was imperative that lawyers should be allowed to argue in Hindi or other Indian languages.

Prime Minister Narendra Modi‘s vision of making court proceedings accessible and intelligible to the common man is laudatory. But writing judgments in diverse languages would prove a hurdle for those not fluent in the local languages because one-third of judges in the 25 High Courts, including the Chief Justice, are from outside the state. This would require additional infrastructure of recruiting translators who have to be adept in translating legalese into the vernacular and then into English, and vice-versa.

English has been the lingua franca of Indian courts for 250 years which means all the Privy Council judgments will have to be translated into the vernacular. This is impractical and will impose a heavy financial burden on the exchequer unless an advanced software is developed to make this feasible.

Were it not for the exalted status he enjoys as the Law Minister of India, some of Mr Rijiju’s statements border on contempt, although former CJI Uday Lalit does not think so. Not all judges concur with the former CJI, though. The Supreme Court Bench of Justices Sanjay Kishan Kaul and Abhay Oka issued notice to the Law Secretary because the names of 11 putative judges reiterated by the collegium were not cleared.

As per the Memorandum of Procedure, once iterated a second time, the Government has to clear the files within 18 weeks. Lawyers who have earlier consented to being elevated as judges will withdraw their consent due to the unending wait, which may be what the government wants them to do, opined Justices Kaul and Oka — though indirectly.

Interestingly, retired Supreme Court judge Madan Lokur said the name of Bombay High Court Chief Justice Dipankar Datta of the 2006 batch was unanimously cleared by the collegium in September 2021 for elevation to the Supreme Court but the government allegedly sat on his file to thwart his chances of taking over as a future Chief Justice of India.

His colleague Deepak Gupta said the government neither clears the files nor points out why some names sent for elevation are not acceptable. Hence, the collegium should not forward more names until the previous names have been cleared. In sum, they too seem to be aware that the Government may replace the opaque collegium system of judges appointing themselves, with one where the Government selects its own judges.

Already, judges who are too vocal in discharging their duties are shunted out. An example is the former Chief Justice of the Madras High Court, Sanjib Banerjee, who was posted to the tiny Meghalaya High Court after he declared in open court that the Election Commission of India should face murder charges for flouting Covid protocols.

The Madras High Court Bar Association condemned what they saw as a punitive transfer of Chief Justice Banerjee to Meghalaya, just as Justice Muralidhar was allegedly transferred from the Delhi High Court to the Punjab and Haryana High Court after he made caustic remarks against the authorities during the Delhi riots.

Mr Rijiju has stated the Government wants to have the final say in who will become a High Court or Supreme Court judge because of the collegium’s opacity. It is not improbable that a new legislation with ingredients of the defunct NJAC Act or another Constitutional amendment, which may dilute if not replace the collegium system, is being mooted. After all, an absolute majority implies the authority to select judges who concur with the Government’s ideology.

The writer holds a Ph.D in law and is a senior journalist and advocate at the Bombay High Court

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