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The author, and the National Lawyers Campaign for Judicial Transparency and Reforms which he leads for the last five years, has been demanding scrapping of the collegium system, nay, selection and appointment of Judges of the Supreme Court and High Courts by advertisement, invite applications, recommendations and references and conduct open and transparent selection of Judges. Articles 124 and 217 of the Constitution provide for appointment of Judges of the Judges of the Supreme Court and High Courts. The executive is the appointing authority under these Articles, but the said Articles make consultation with the Chief Justice of the State concerned, so too the Governor, mandatory in the case of appointment of Judges of the High Court and the Chief Justice of India (CJI) in the case of appointment of Judges of the Supreme Court. In the case of appointment of the CJI, the President, meaning the executive, is duty bound to consult as many number of Judges of the Supreme Court and the High Courts as the President may choose. This system worked well. No grievance was made out, except that the higher judiciary has greater representation of the elite class and it lacked diversity. Late E.M.S. Namboodiripad, former Chief Minister of Kerala, so too Justice Krishna Iyer, was the most vocal among those who complained about lack of diversity. There was no complaint that the Government ever unduly meddled with judicial appointments or ventured to tinker with the independence of judiciary except the Indira Gandhi Government during the Emergency. While the executive is the de facto appointing authority, the judiciary was consulted.

2. For the first time the said mechanism was questioned in S.P. Gupta’s case, called Judges-1 case. A Seven-Judge Constitution Bench of the Supreme Court asserted what the Founding Fathers had said in unmistakable terms, namely, that the executive is the appointing authority and it shall effectively consult the judiciary, but consultation did not mean concurrence. However, even before the ink on the said judgment could dry, the issue was raked up and the Judges-2 case, namely, the Supreme Court Advocates on Record v. Union of India, is the aftermath of the same. In Judges-2 case, a Nine-Judge Constitution Bench overruled Judges-1 case and held that consultation does not merely mean concurrence but even beyond that, the primacy of the views of the CJI. A couple of years later, in 1999, a Nine-Judge Bench in Judges-3 case held that the primacy of the views of the CJI means primacy of the opinion of a collegium of the Supreme Court; so too of the High Court of which its Chief Justice is the Chairman. It is by Judges-2 and Judges-3 cases that instead of Articles 124 and 217, a collegium system of appointment came into existence.

3. The collegium system meant Judges appointing themselves with no say for the Government and the Union Cabinet being reduced to a post office forwarding the recommendations of the collegium for the signature of the President. The Supreme Court of India, except for its surrender to the might of the executive during the Emergency, is an institution which is so much respected, an institution manned by men of great integrity, impartiality, erudition, knowledge and wisdom. Therefore the citizenry did not take cognizance of the fact that the collegium system of appointment means subversion of the Constitution, literal tearing off of Articles 124 and 217, cutting the concept of separation of power at its very root, and is a prescription for a great calamity, wholly avoidable though.

4. If the author could trust his memory, only one man spoke against the judgments in Judges-2 and Judges-3 cases and that is Justice Krishna Iyer. He said it would lead to oligarchy and meant nothing but usurping the power of the executive. He had also pointed out that the jurisprudence of PIL is only meant for enforcement of private rights and in the name of PIL nobody has a right to seek judicial relief in matters of public law, which are non-justiciable, and relaxation of the concept of locus standi. The new jurisprudence called PIL can only mean that a person acting bona fide can approach the superior Courts for enforcement of a private right of a citizen who, out of poverty, illiteracy and other disabilities, cannot approach the constitutional Courts himself. In other words, PIL means litigation in the realm of enforcement of private remedies.

5. Man is a selfish animal. God alone is sinless. Even a Muni, howsoever virtuous he could be, is not absolutely devoid of the element of taint, sin or selfishness. Judges of the Supreme Court, who constituted the collegium, were all men of great integrity, wisdom, erudition, knowledge and experience, no doubt. But when Judges were given absolute right or domain to select and appoint Judges, the human frailty cropped in, without even waiting for a day. Judges-2 case only spoke about the primacy of the views of the CJI. The grievance was that if the primacy of the views of the CJI alone was to be considered, then extraneous factors, the CJI being a fallible human being, will crop in. Judges-3 case is the result of that. The argument was that the job of selecting Judges cannot entirely be left to the CJI, for it could lead to arbitrariness and extraneous considerations. Therefore it should be left to a collegium consisting of the CJI and seniormost Judges. The collegium is not a collegium of saints; it is a collegium of fallible human beings; and when the collegium is invested with absolute power, like the old adage, power corrupts and absolute power corrupts absolutely. No sooner the collegium system came into existence, it happened to be a victim of the fallibility of the humans, selfish and private interest. The collegium system became a cabal, opaque, system of selection and appointment of Judges where the entire world is kept in darkness as to who is selected, appointed, and on what considerations. The fact that from 1994 till 2014 there were coalition Governments and a weak executive at the Centre made the cabal collegium system to continue. The data which the National Lawyers Campaign could gather, even while it is incomplete, show that mostly kith and kin of Judges are appointed. In the High Court of Bombay, as of today, there are at least seven Judges who are sons of former Judges of that Court. There are at least two Judges of the said Court who are immediate relatives, uncle and nephew. Like the political families of Karunanidhis, Pawars et al, there are many families where every member is a Judge. The collegium system has meant every son or daughter of former Judges of the Supreme Court being on the Bench. The present Chief Justices of the Allahabad and Jharkhand High Courts are sons of former Judges of the Supreme Court. The Acting Chief Justice of the Gujarat High Court is son of a former Judge of the Supreme Court. In some High Courts the entire Bench comprise progenies of former Judges. Late Marxist philosopher and former Chief Minister of Kerala Shri Namboodiripad had to face contempt of Court proceeding, nay, he was convicted and imposed a penalty for raising this issue. His grievance was that in a system where the executive appoints Judges, there is no diversity. But the collegium system which came in substitution of the same meant that literally not a single appointment is made without a candidate being sponsored by a sitting or retired Judge, someone who can influence the collegium. The author is not suggesting the least that the Judges appointed since 1994 do not deserve to be appointed. On the contrary, he considers that many of them exceedingly deserve to be appointed. Yet, the fact remains that even the most deserving one needed a Godfather as a sitting or former Judge. At least that is the general perception.

6. It is unfortunate that in spite of the National Lawyers Campaign demanding that the vacancies in the august office of the Judges of the Supreme Court and High Courts be advertised, applications be invited from those who are eligible and desirous to be appointed, recommendations and references be invited from members of the Bar, Bar Associations, sitting and retired Judges, political parties and other stakeholders, scrutinize and shortlist candidates found eligible, invite objections, if any, from the public at large and then make the appointments, no serious notice thereof has been taken by the Government and even political parties. To conduct such open selection, no legislation is required; no constitutional amendment is required. What is required is a will to do so. Even within the collegium system, though this author is the last man to endorse the said system, advertisement of vacancies could be made and appointments done. It must be added that if the Parliament could make a law prescribing the modalities by which such advertisements and open selection could be made, that is most ideal.

7. The allegation that the National Judicial Appointment Commission would tinker with the independence of judiciary because its two non-judicial members could veto the opinion of the CJI and two seniormost Judges is most ridiculous. The proposed Commission is too loaded in favour of the judiciary while in U.K. the Judicial Appointment Commission is presided over by a lay person and the lay people have majority. Of the six members, CJI and two seniormost Judges constitute 50%. The Law Minister is the sole representative of the Government. The two eminent persons are to be jointly selected by a Committee comprising the Prime Minister, Chief Justice of India and the Leader of the Opposition. Therefore, even the bona fides of those who allege that the Commission will tinker with the independence of judiciary is to be suspected. The need of the hour is to advertise vacancies and conduct an open and transparent selection by notifying the names of the candidates selected and affording an opportunity to the public to raise their objections, if any. If that is done, whether the selection process is conducted by the collegium or the Commission is of little consequence. The need of the hour is greater transparency. Justice A.P. Shah, Chairman of the Law Commission of India, spoke of the trade off, nay, compromise in the collegium system. It may happen even where an Appointment Commission is put in place, but when vacancies are advertised and open selection is made, then there is no room for any trade off. Then we will see the real Daniels occupying the chair of Solomon.

Mumbai

07.10.2014