The appointment of judges at the level of
the high courts and Supreme Court continues to be problematic, in spite
of cosmetic changes brought in through judicial activism in two stages.
What remains is known as the collegium system. It was formulated by a
nine-judge bench of the Supreme Court after hearing long arguments
addressed by top-ranking counsel. Initially, the collegium system was
generally welcomed, despite opposition from politicians on the ground
that the judges had arrogated to themselves the power of choosing
judges. But in due course, it received criticism from different
quarters, including members of the Bar. It is true that the collegium
system has remained in force for more than 15 years. As the years have
passed, burgeoning criticism that the present system did not remedy the
drawbacks of the erstwhile mechanism have eventually become more
strident.
At least in a few instances, unsuitable
persons have found their way to seats of judges in the high courts. It
is, of course, a matter of relief that the number of such persons has
not swelled to alarming proportions. At the same time, it would not be
true to say that no unsuitable person has reached the Supreme Court
bench through the collegium system. The lesson to learn is that however
much improvement is sought to be achieved through changes to the
appointments process, the efficacy of its working depends on the vision
and dedication of the persons empowered to manage the system.
The chairman of the Law Commission of
India has suggested that a seven-member judicial appointments commission
(JAC), with a preponderance of members from the judiciary, be
instituted. But of what use are the proposed changes if some members of
the JAC function in the same manner as before? What is the guarantee
that only persons of impeccable and proven integrity, coupled with the
moral strength to assert their dissent (if any) on record, would fill up
the JAC? Having been a member of the collegium of the Supreme Court, I
know how outsiders seek (and get) access so as to canvass for the
decision-making process. I doubt that the situation would change if the
proposed composition of the JAC were to be implemented. I am also not
prepared to say that the selection of “eminent persons” would not
become diluted in due course, particularly because of the vagueness in
standardising who these “eminent persons” can be. I am sceptical of the
outcome of the JAC in the long run, given that the scope for
manipulation and favouritism cannot be fully eliminated even within it.
A former chief justice of the Kerala High
Court had evolved an experiment while adhering to the collegium
mechanism. When there were three vacancies of Bar candidates, he invited
recommendations from all his companion judges in the high court,
requesting them to send at least five names each. He got 40 names
altogether, and shortlisted them to 10. He studied their performance and
presented his views before the other members of the collegium of the
high court. When there was dissent, he expanded the three-member
collegium and obtained their views also. He made the final
recommendation to the Supreme Court. In that process, the Kerala High
Court gained three very fine judges. I thought that the same could be
followed by the chief justices of other high courts and, in fact, I
wrote an article in support of it. But on deeper thought, I sensed that
if the practice continued and remained in place for much longer, the
scope for canvassing with other judges for interested persons would have
increased greatly and the experiment would have been rendered
ineffective.
The criticism that the executive has now
no role in the appointment of judges is, to a great extent, misplaced.
In my view, there should not be any dispute on the proposition that
judges should have the first-stage opportunity to point out who the best
candidates for judgeship are. But their judgements on that score cannot
be treated as infallible. When names of candidates are sent by the
collegium to the executive, it is definitely possible for the executive
to conduct a thorough inquiry through such departmental agencies as they
could trust. Then the executive can send back the names to the
collegium for further consideration and a final decision. One change I
wish to propose is to permit the executive to propose names to the
collegium at the initial stage.
Whenever recommendations are to be made
for more than two vacancies (it may go up to 15 and sometimes even to
20), there could be a temptation for members of the collegium to
compromise in order to accommodate candidates on barter considerations.
Whenever bulk recommendations have occurred in the past, some
not-so-suitable (if not totally unsuitable) candidates have succeeded in
getting access to the list. This defect can be effectively eliminated
by restricting recommendations strictly to one or two vacancies at a
time, and definitely no more. In my view, the existing system can
continue with the modifications indicated above.
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