N. Ramachandra Rao Vs Justice Chandra Kumar
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Collegium too has defects: N. Ramachandra Rao (Member of Bar Council of India and BJP MLC)
One of the most significant developments that took place during the reign of the present NDA government has been the proposed change in the method of appointments to the higher judiciary in India. It led to the passage of the Constitution (99thAmendment) Act, 2014 and also the National Judicial Appointment Commission Act, 2014 by both houses of Parliament.
This step generated a lot of discussion in support and against, especially in relation to the constitution of NJAC, and the likely impact it can have on the independence of judiciary. In its judgement on the Constitutional validity of the initiatives relating to NJAC, a SC Constitution Bench struck down the impugned amendment and the Act as being unconstitutional and declared that the pre-existing scheme of appointment of judges through the collegium system stands revived.
However, the learned judges also admitted that the collegium system that gives primacy to the higher judiciary in appointing judges of the higher judiciary is not free from defects, and the grievances regarding its working need to be addressed. Justice Kurian Joseph, went to the extent of observing that the collegium system needs to be improved upon, to the extent that it requires a ‘glasnost’ and a ‘perestroika’. He agreed with Justice Chelameswar, the lone dissenting judge, that the present collegium system lacked transparency, accountability and objectivity.
He also pointed out that a trust deficit has affected the credibility of the collegium system, as was sometimes observed by the civic society. He mentioned the very serious allegations — and these are many a time not unfounded too — that have been raised, to the effect that:
- Its approach has been highly subjective;
- Deserving persons have been ignored wholly for subjective reasons;
- Social and other national realities were overlooked;
- Certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised;
- Selection of patronised or favoured persons were made in blatant violation of the guidelines, resulting in unmerited, if not, bad appointments;
- The dictatorial attitude of the collegium seriously affected the self-respect and dignity, if not, independence of Judges etc.
These allegations certainly call for deep introspection. The five-judge bench headed by Justice J.S. Khehar had, on October 5, 2015, decided to seek suggestions from citizens till November13, 2015. What, however, is intriguing is that the SC appears to have directed the HCs to prepare panels of advocates for being considered for appointment as high court judges at a time when the so-called consultative process with the citizens as to the collegium system is still on.
Whatever may be the argument as to the primacy of the SC or judiciary on the one hand, and the primacy of the Parliament on the other, it is trite to remind ourselves that it is the Constitution which is supreme.
Better system can be devised: Justice Chandra Kumar (Retired Judge of Hyderabad High Court)
The Indian Constitution has guaranteed some fundamental rights to citizens of this country which need to be protected and the judiciary acts as a guardian of these rights.
While the legislation makes laws, it is for the courts to ensure that none of these laws are violating any of the fundamental rights guaranteed by the Constitution.
There have been instances where the government had violated these rights of the people and the judiciary had to intervene. Apart from settling disputes, the Supreme Court of India also has the duty to protect the rights of citizens. It is possible only if the judiciary is not under anyone’s influence and if there is no interference in appointment of judges by the government. The role of the state should be minimum.
How can the judiciary be expected to function with autonomy in an impartial manner if the appointments are in the hands of the law minister who works for the government.”
A potential risk that stands if the judicial appointments are to be made by the government is that people selected to head the judiciary might get selected based on their personal and political views. A judge’s political affiliations with any party, ideology or his personal views on issues should not be a hurdle or become a criterion of selection.
In the present system, the collegium suggests names of judges to the government for their appointment. The government inquires into these names using various methods and if there is any objection with the names it raises the issue which is again pursued by the collegium.
It is true that there are certain lapses in the collegium system too. There have been allegations of influential people having sway over the selection of judges or the kin of a certain judge getting favoured for his lineage. There is also the issue of lack of proportionate representation among the judges of people from Scheduled Castes, Scheduled Tribes, Backward Castes and religious minorities.
However, the collegium can work towards these issues and rectify by making the judicial appointments transparent. All the information regarding selection process and appointments should be put in the public domain along with the communication that takes place between the government and the collegium.
The loopholes in the collegium system can be rectified but the system itself is necessary for insulating the judiciary from political intervention and bias. A collegium system with minimum defects can be designed by bringing in some changes and transparency to ensure that the judiciary continues to protect the fundamental rights of the citizens of this country but in a more effective manner.
But it has to be ensured that the whims and fancies of the government are not allowed to have any dominance in judicial appointments.
