New Delhi : Even as Justice V.S. Sirpurkar of the Supreme Court found “indigestible” the criticism of judiciary during a Rajya Sabha debate to impeach Justice Soumitra Sen of Calcutta High Court, lawyers said that “in a democracy, no institution is immune from criticism and the judges should not be wary of it”.
Justice Sirpurkar was apparently aggrieved with Leader of Opposition Arun Jaitley describing the collegium system of judges’ appointments as “non-transparent”, “discretionary”, “arbitrary” and devoid of criteria and thereby giving the impression that the members of collegiums were “sharing the spoils” in the appointment of judges.
Under the collegium system, five senior-most judges of the apex court (chief justice of India and four others) decide on the judicial appointments in the apex court and high courts.
Justice Sirpurkar’s remarks made Friday at his farewell function may have reflected the feelings of many of his colleague judges on the judiciary’s criticism by legislators, but he seemed to have little support among lawyers – who form the other half of the judicial system.
Most senior counsel who spoke to IANS slammed the collegium system, linking it to incidents of judicial misconduct.
Senior counsel Raju Ramachandran said that “judges should not be hyper-sensitive to such criticism” as the “criticism of (the collegium system of) judicial appointments was warranted”.
During the Rajya Sabha debate, Jaitley slammed the top judiciary for obliterating the ‘Lakshman Rekha’ separating powers between the executive (government), the legislature (parliament) and the judiciary by interfering in the area of economic policy, security, counter-insurgency and even foreign policy. He also chided judges for their yearning for post-retirement jobs.
But former additional solicitor general Amarendra Saran disagreed on the suggestion of judicial interference.
Citing the apex court’s recent direction to the Chhattisgarh government to stop recruiting and using tribals as Special Police Officers in anti-Maoist operations, he said that it was “entirely in the spirit of the constitution”.
Saran agreed with the criticism of neo-liberal policies of the government by the apex court in the case and said the constitution emphasised on political and economic equality.
“No judge, individual or thinking person could be without any ideology. Persons who claim themselves neutral between haves and have-nots in fact are persons favouring the haves,” Saran said, adding that the court’s observations in the case were more a reflection of ideology than a judicial pronouncement.
Therefore, the criticism of neo-liberalism which was opposed to the spirit of the constitution was rightly made in the judgment, the former ASG said.
Former chief justice of Patna High Court Nagendra Rai said that the collegium system had made the appointment of judges more elitist. “You hardly find a senior lawyer from rural background getting promoted to the bench.”
He said “lawyers with rural background are deprecated in every possible way, the accolades are reserved for urbane and suave lawyers.”
Another legal expert, who did not wish to be named, criticised the collegium system for having failed to attract the best of talent and referred to a recent judgment of the apex court to drive home his point.
He referred to a recent judgment by the apex court bench of Justice K.S. Panicker Radhakrishnan and Justice G.S. Singhvi which said: “Of late, we have come across several orders which indicate that some of the judges are averse to deciding disputes when they are complex and complicated, and would find ways and means to pass on the burden to their brethren or remand the matter to lower courts not for good reasons.”
Ramachandran said the situation can be retrieved by setting up a national judicial commission (NJC) for appointing judges. The commission should have the prime minister, the leader of opposition in Lok Sabha, eminent members of the bar and distinguished public personalities along with judges.
But he had a word of caution. “Don’t pack the NJC with a majority of judges as it would amount to judicial primacy, resulting in the same situation as it prevails today.”
To buttress his point, he referred to the observation of former apex court judge S. Ratnavel Pandian that “the judiciary can’t be self-perpetuating oligarchy”.