Collegium in appointment of judges

8/9/2019 Collegium in appointment of judges

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Collegium

Notorious for being opaque, the two-decade-old collegium system — under which judgesappoint judges — appears to be on its way out. The controversy generated by formerSupreme ourt !S" judge #ar$andey %atju&s allegation that a 'corrupt( #adras )igh ourt

judge was allowed to continue in office due to political pressure from the *#%-supported+- government could just be the last straw.

/ollowing a consensus reached at a consultation organised by the N* government witheminent jurists, the 0aw #inistry is wor$ing on a onstitutional amendment bill to replace thecollegium system with a 1udicial ppointments ommission !1" in which the e2ecutive willalso have some say in appointment of judges of the S and )igh ourts !)". Thegovernment is said to be $een to introduce the bill in arliament during the current monsoonsession.

3ut the much-maligned collegium system was not that bad to start with. 4hen the Supremeourt introduced it through a judicial verdict in 5667, it was hailed as a guarantee againstattempts to install a committed judiciary during ndira 8andhi&s rule. eople had barely

forgotten the pril 5697 supersession of three S judges and the punitive transfers of judges



in the 56:;s. t was believed this would ensure judicial independence, which is crucial for thesurvival of any democracy.

Secretive System This made ndia the only country in the world where judges appoint judges. The complete

e2clusion of the e2ecutive from the judicial appointment process created a system where afew judges appoint the rest in complete secrecy. The result< favouritism leading to a declinein the quality of appointments.

4hile successive law ministers have criticised the collegium system, most 1s !hief1ustice of ndia" have strongly defended it, saying appointments to the higher judiciary aremade after 'intense deliberations(. The controversy over the N* government&s refusal toappoint senior advocate 8opal Subramanium as a S judge once again brought to the forethe tussle between the judiciary and the e2ecutive over judicial appointments.

In controversies4hether it is the recommendation to elevate the then %arnata$a ) hief 1ustice !1" *

*ina$aran or the recent one to ma$e 1ustice %0 #anjunath the 1 of unjab and )aryana) — the collegium system has been dogged by controversies, forcing a rethin$. 0ate1ustice 1S =erma, who was part of the bench that delivered the 5667 verdict leading to thesetting up of the collegium system, had to advocate a change in the judicial appointmentsystem. Similarly, noted jurist /ali Nariman, who argued for the collegium system, now thin$sit should be replaced.

Finding faultsThe 0aw ommission, the arliamentary Standing ommittee on 0aw and 1ustice, theNational ommission to >eview the 4or$ing of the onstitution and many senior judges andadvocates have suggested that the collegium system be scrapped. '3ut the real question ishow best it can be done to ensure that only able and independent persons are appointed as judges,( says former ttorney 8eneral Soli 1 Sorabjee.

UPA’s JAC billThe 1udicial ppointments ommission 3ill introduced in the >ajya Sabha in ?;57 by the+ government had sought to set up a si2-member 1 headed by the 1 to replace thecollegium system. @ther members of the proposed 1 are two senior-most S judges, the0aw #inister and two eminent persons. The proposed 1 will have the power to appointand transfer S and ) judges. The 1 3ill is still pending in the >ajya Sabha, while the5?;th onstitution mendment 3ill passed by the >ajya Sabha in September ?;57 haslapsed with the dissolution of the 5Ath 0o$ Sabha.

Judicial independence 4hile there is consensus on the need to replace the collegium system, there is no clarity onthe composition of the proposed 1. 1urists feel the e2ecutive should have a say inappointments but the composition of the 1 should be such that it does not result incompromising judicial independence. 1ustice %atju feels the seven-member 1 should alsohave the 0eader of @pposition in the 0o$ Sabha and one jurist nominated by the residentat his own discretion. The chairman wants the selection hearing should be nationallytelevised li$e the +S senate hearing for the confirmation of a judge. Sorabjee thin$sotherwise. 'Transparency does not mean the selection process should be nationallytelevised. 3ut the deliberations must be recorded and should be available when the occasionarises,( he says.

The ay For!ard'4hatever may be the composition of the 1, it is important to stri$e a balance between



judicial independence and judicial accountability. The real issue is not who !judiciary ore2ecutive" appoints the judgesB but the manner in which they are appointed. +nless theentire process is transparent, the quality of appointment would not improve,( says senioradvocate %TS Tulsi. 0aw #inister >avi Shan$ar rasad has already clarified that thegovernment does not want to go bac$ to the pre-5667 system in which the e2ecutive had agreater say in judicial appointments. ll eyes are now on the N* government.

"o# Sabha passes t!o $ills to replace %udges& collegium system

The 0o$ Sabha on 4ednesday passed two crucial 3ills that will pave the way for scrapping

of the old collegium system of appointing Supreme ourt and high court judges.

The onstitution !66th mendment" 3ill and the National 1udicial ppointment ommission

3ill ?;5C were passed by the 0ower )ouse of arliament after 0aw #inister >avi Shan$ar

rasad assured members that the government did not have any intention of interfering in the

functioning of the judiciary, reported NS.

Supreme ourtSupreme ourtThe minister also moved an amendment to change the

number of the onstitution mendment 3ill from 5?5st to 66th, which was passed by the

)ouse.

4hile the 1udicial ppointments ommission 3ill was passed by a voice vote, the

onstitution mendment 3ill was passed after a division, with 79D members voted in its

favour.

t is necessary for a constitution amendment 3ill to pass by a two-thirds majority.

The 3ills will now have to be passed by the >ajya Sabha before they are sent to the

resident for his assent, after which they become cts.

The two 3ills see$ to scrap the collegium system of appointing judges and set up a

commission for this.

The 3ills propose that the hief 1ustice of ndia will head si2-member National 1udicial

ppointments ommission, other members of which would be the law minister, two senior

Supreme ourt judges and two eminent people.

collegium comprising the rime #inister, the hief 1ustice of ndia and the leader of the

single largest party in the 0o$ Sabha will select the two eminent people.

@ne eminent person will be nominated from among the Scheduled astes, Scheduled

Tribes, @3s, minorities or women.

The 3ill states that the commission will see$ the views of the governor and chief minister of

the state concerned in writing before appointing or transferring a judge of that high court.

@ne of the provisions of the 3ill that if two members of the commission do not agree on a

candidate, he or she will not be appointed was opposed by quite a few members who

claimed that this will lead to a veto system.

0aw #inister >avi Shan$ar rasad, however, allayed their fears saying< ETwo is a voice to be

considered in case of dissent.E



EThe process of consultation has been made more meaningful. large section of people do

not have representation in the judiciary as of now,E he said, adding that there should be a

database of lawyers from reserved categories.

EThe need for a new law is not the thin$ing of only our government. t is a collective e2ercise

which has been in the offing for the last ?; years,E he said.

Farlier, ongress # #alli$arjun %harge as$ed the government to ma$e a provision to ma$e

representation of Scheduled astes and Scheduled Tribes mandatory in the judicial

commission.

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Collegium in appointment of judges