National Judicial Appointments Commission: DC discusses whether it was a right move or a wrong one?

On the other hand, Chief Justice of India, R.M. Lodha, while disposing of a public interest litigation observed in open court: “If you say the collegium has failed, then everybody has failed. All the judges were appointed by the collegium.” It was rather unfortunate that even before the new law was put in place, the head of the judicial family had to make his displeasure public.

The system of appointment of judges of the higher judiciary was a subject of debate in the constituent assembly and finally the Constitution-makers decided to place their confidence in the highest dignitaries of the nation, the President (incidentally the cabinet) and the Chief Justice of India in the matter of such appointments. Under Articles 124 and 217 of the Constitution the President must consult with the judiciary before making the appointments. On the question of whether the President should obtain the consent of the Chief Justice of India in the matter of appointments, Dr Ambedkar, the chief architect of the Indian Constitution said the provision was only for consultation and not giving any veto power to the CJI.

However, in the last 64 years since the Constitution came into force, we have had three different interpretations of the mode of appointment to the higher judiciary from the Supreme Court. And post 1993 by a Constitutional coup the power of appointment to the higher judiciary was virtually taken over by the judiciary. Nowhere in the world is there a system by which judges themselves appoint other judges. It is this collegium system, in vogue for the last 20 years, which has given rise to controversies.

The drawback of this system is that it is not transparent. Justice Ruma Pal called it “one of the best kept secrets in this country.” Moreover, the composition of the collegium constantly changes due to retirement and transfer of senior judges. Also, the judges who constitute the collegium have no mechanism to verify the antecedents of any candidate whose names they have proposed. More often the appointment made result in disappointments.

If the judiciary is capable of recruiting its own members, which it has been doing for over two decades why is it that we have not seen the likes of Krishna Iyer, Chinnappa Reddy, Bhagwati and Desai adorning the bench of late?

In the new dispensation, a permanent constitutional mechanism will be put in place and the adhocism of the past will no longer exist. The claim that the new procedure will cause serious harm to the independence of the judiciary is a bogey. For the first time, the recruitment to higher judiciary will not be based on arbitrariness and be free of favouritism.

The veto given to two members of the National Judicial Appointment Com mission (NJAC) will be a safeguard against undesirable candidates, propped up either at the instance of the judiciary or the executive, from being appointed. Even if the new procedure results in failure, Parliament can always step in and create a new mechanism for the future.

So let’s give the new NJAC a chance and bid farewell to the collegium system of appointments invented by the judges.

A collegium of judges of the Supreme Court was introduced in 1993 to ensure independence of judges of the high courts and the Supreme Court even at the time of their appointment. The Supreme Court underlines that to be an able, independent and fearless judge, one should not only have legal expertise and the ability to handle cases, but proper personal conduct and ethical behaviour. Of course, the collegium looks for such persons through a consultative process, but fails at times. Such occasional failure can be a ground for improving the process of selection, but not for abolition of the collegium itself.

Who is best suited to select the judges of the high courts and the Supreme Court — the judiciary or executive or both? Two nine-judge benches of the Supreme Court (1993 and 1998) said the opinion of the Chief Justice of India formed after consulting the senior most puisne judges of the Supreme Court and considering the views of the executive, if any, should have primacy. The law says the opinion of the Chief Justice of the high court is entitled to the greatest weight in the matter of appointment of judges in a high court.

The only criticism against the selection process is that mere consultation among judges of the high courts and the Supreme Court cannot draw the best talent available for the superior judiciary. While an advocate with a standing of ten years is eligible to be considered for appointment as a judge of the high court, ordinarily, well known advocates with more than 20 years of experience are invited by the Chief Justice to express their willingness.

Only after consultation with senior most judges and eminent lawyers in the high court, is such an invitation extended by the Chief Justice. But the pre-invitation process is kept secret and there are no known criteria of selection. With this sort of a selection process, the objective of drawing the best talent available is not always served.

So the collegium needs improvement. Once right persons are appointed to the high courts, our Supreme Court will have the best. Before the Chief Justice of a high court forms his opinion, the candidates for judgeship could face seminars and workshops specially designed to assess their social philosophy and their capacity to deliver judgments in open court immediately after the conclusion of arguments.