Restoring collegium not the best option

P.P. Rao

It was a historic opportunity to improve the quality of judicial appointments and ensure transparency and accountability in selections which ought to have been availed fully. Such opportunities come rarely. Instead of striking down the Constitution amendment and the NJAC Act the court could have moulded the same through judicial craftsmanship to provide for a better method of selection than the collegium system.  In the first judges case (SP Gupta vs. UOI) the Supreme Court conceded the final say in the matter of selection of High Court and Supreme Court judges to the Executive. Initially the Prime Ministers were men of vision.

(Read: CJI voting statistic, system needs to be fine-tuned, by Rajindar Sachar)

The Executive implicitly abided by the  recommendations made by successive Chief Justices of India and the appointments made were excellent. Nobody doubted the competency or integrity of the judges appointed prior to the supersession of the three senior judges in 1973. When short-sighted Prime Ministers and Law Ministers came to power, the independence of the judiciary suffered irreparable damage. Supersession of three senior judges and the appointment of the fourth judge as the Chief Justice of India following the judgment in the famous Keshavananda Bharati case denuding Parliament of its power to amend the basic structure of the Constitution was a blunder and an open challenge to the judiciary.

Independence of the judiciary is a basic feature of the Constitution and needs to be safeguarded jealously. Unless the judges are fearlessly  independent and upright, justice cannot be even-handed. The first judges case in 1981 created a suffocating situation as the judiciary could not play an effective role in the selection of judges.  After 1973 the relations between the judiciary on one side and the executive and legislature on the other were far from cordial. The Indian Bar is always vigilant and vocal. It is the lawyers who fight for justice for citizens and non-citizens alike in courts.

They became restless. Hence the second judges case, Supreme Court Advocates On Record Association vs. UOI (1993), for reconsideration of S.P. Gupta. Leading lawyers of the country persuaded a nine-member Bench to overrule the decision in the first judges case and secured primacy to the recommendations made by the CJI  in consultation with his senior judges for the appointment of suitable candidates as judges. The court declared that the recommendations so made shall be binding on the executive.

The role of the executive was limited to seeking reconsideration of the recommendations by the collegium of judges in the light of the material in its possession which the collegium was bound to consider. The collegium was free to revise or reiterate its recommendations. Not only the Bar, but even the judges who declared the law had entertained the pious hope that the collegium would always choose the best candidates and secure their appointment speedily, but experience has belied the expectation. Initially, the collegium performed well but later on when short-sighted persons who could not rise above narrow considerations became members, the recommendations lacked quality. The executive became helpless to stall undesirable appointments with the result, independence of the judiciary suffered a setback. There have been instances where a candidate rejected by one collegium on account of doubts regarding integrity was picked up by the next collegium. Such appointments tend to shake the confidence of the public and the Bar in the judiciary. The collegium headed by Justice KG Balakrishnan was bent upon pushing through the elevation of Justice P.D. Dinakaran, the then Chief Justice of Karnataka High Court, to the Supreme Court, brushing aside the resolution of the Bar Association of India headed by  Fali S. Nariman of which eminent senior advocates were vice-presidents. The resolution suggested that the recommendation should be kept in abeyance till Justice Dinakaran was exonerated of the charges of corruption. He eventually resigned after receiving the show cause notice from the Judges Inquiry Committee. A judge of the Calcutta High Court, Justice Soumitra Sen, averted impeachment by Parliament by tendering his resignation at the last minute. A few High Court judges who are the products of the collegium system are facing criminal prosecution on charges of corruption. Favouritism and nepotism on the part of the collegium of the Supreme Court and the High Courts have been noticed in some cases. More deserving candidates were held back and less deserving were elevated to the Supreme Court. Therefore, restoring the collegium is not the best option. 

The country needs a better system than  the collegium and the NJAC. The National Commission to Review the working of the  Constitution of India chaired by the most highly reputed former Chief Justice of India, Justice M.N. Venkatachaliah, recommended a  five-member Judicial Appointments Commission  consisting of the Chief Justice of India as the Chairperson, two senior-most judges, the Law Minister and one eminent person as members .

The Supreme Court instead of striking down the 99th Constitution amendment and the NJAC Act, 2014, could have moulded the same into a commission as proposed by the Chief Justice Venkatachaliah Commission by  scissoring off objectionable portions in the Act like the veto given to any two members of the commission to derail the recommendations made by the NJAC and converting the 'two eminent persons' into one 'eminent person' by applying the rule of severability which permits such a surgical operation. The Bench could have clarified that the 'eminent person' shall be one who is well equipped to select suitable candidates for superior judiciary.   

The latest judgment is not bad to the extent it has struck down the impugned Constitution amendment and the Act as upholding them would have been a disaster. The decision of the court to hear separately on the measures to improve the collegium system is a silver lining in a dark cloud. The collegium system has been tried for two decades and it has proved to be opaque, unsafe and unaccountable. On several occasions, members of the collegium were perceived to be guided by personal factors and indulging in give and take, compromising on the quality of selection.

The importance given to seniority of High Court judges in the matter of elevation to the Supreme Court has not improved the quality of appointments in many cases. In the ultimate analysis the quality of appointments made reflects the quality and calibre of the selectors. Keeping the executive out of the selection process is not at all desirable. The government is a coordinate wing of the State and is the appointing authority. It is necessary to co-opt the Law Minister as a member of the collegium without a right to vote so that with his inputs the recommendations made would go through smoothly. The greatest relief today is the stalemate created due to the pendency of the case has ended. Let us wait and see what happens after the hearing on November 3, 2015.

—The writer is a Senior Advocate of the Supreme Court specialising on constitutional law