By Parmod Kumar, IANS,
New Delhi : Even as Chief Justice P. Sathasivam stoutly defended the collegium system for appointments of judges in the high courts and the Supreme Court, the legal fraternity is almost unanimous in its view that this 20-year-old system is ineffective and should be replaced by a mechanism that is transparent and criteria-oriented.
“The collegium system is not rigid and the list (of recommended names) has to cross many stages”, before it is finalized, new Chief Justice Sathasivam has said, defending it against the onslaught by legal eagles and the government, which is itching to get back its foothold in the selection of judges.
Under the collegium system, the Chief Justice of India and four senior-most judges of the apex court decide and recommend to the government the names of the judges to be elevated to the apex court or those to be appointed to the country’s high courts.
This system of appointment emerged from the majority judgment in a case in 1993.
In “how many cases did the government express reservations” on the names recommended by the top five judges of the apex court Sathasivam asked while countering criticism that the government was being kept out and had no voice in the selection and appointment of judges under the present system.
Defending the system during his address at a function to bid farewell to the retiring chief justice Altamas Kabir, Sathasivam said: “There may be one or two shortcomings” but the collegium system “can’t be overruled as the existing system was given by nine judges of the constitution bench.”
This was an obvious reminder to the government to keep off, as the collegium system could only be overturned by larger eleven-judge bench or by amending the constitution.
However, the defence of the collegium system advanced by the chief justice is not shared by legal eagles, who feel it is devoid of criteria and was not transparent, and has created a furious debate in legal circles.
“Almost all the leading lawyers of the Supreme Court, particularly senior counsel Fali Nariman, Anil Divan, T.R. Andhyarujina, K.K. Venugopal, P.P.Rao and others feel that collegium system has failed”, Supreme Court Bar Association president M.N. Krishnamani told IANS.
“All of them feel that barring one or two appointments, all other appointments done by the collegium system are vitiated either by lack of criteria or lack of transparency and by nepotism and favouratism,” he added.
To insulate the judicial system from the government’s tinkering and manipulations, judges took upon themselves the task of appointing judges but what emerged from the 1993 case was a system which was devoid of criteria and was non-transparent, said Prashant Bhushan, convenor of the Committee for Judicial Accountability and Reforms.
“There is no criteria in the selection of people sought to be appointed as judges or judges sought to elevated or promoted to next higher position, no short listing of people in consideration zone, no evaluation of records, no comparative assessment of the records of the people sought to be elevated, no process of public consultations and no feedback from outside sources,” Bhushan told IANS, picking holes in the collegium system.
Krishnamani said most of the senior attorneys feel that all the great judges – including Justice M. Patanjali Sastri, Justice K. Subba Rao, Justice M. Hidayatullah, Justice P.N. Bhagwati, Justice Vivian Bose and Justice V.R. Krishna Iyer – were appointed under the pre-1993 system when the executive appointed them in consultation with the Chief Justice of India.
The collegium system, Krishnamani said, has “hardly produced any judge of any such outstanding calibre so far”.
“But the extra-curricular task, that of recommending appointments to the highest court, has not been conducted with the care and caution that it deserves. There is too much ad hocism, and no consistent and transparent process of selection. As a result, the image of the court has gravely suffered,” eminent jurist Fali Nariman said the chapter “A Case I Won – But Which I Would Prefer To Have Lost” in his autobiography “Before Memory Fades.”.
It was Nariman’s arguments that had persuaded the majority in the nine-judge bench to create a collegium system for the appointment of judges and insulate it from the government’s reach.
Obviously disillusioned by the system that he had ably argued to create, Nariman today wants it to be junked.
(Parmod Kumar can be contacted at [email protected])