Thursday, 27 October 2016

Supreme Court Collegium

The present practice of selection of Judges for Supreme Court & High Court by "Supreme Court Collegium" is neither authorised by Constitution nor by any Act of Parliament.

  • The Collegium system was evolved through Supreme Court judgments in the Three Judges Cases. But not by a Constitutional provision or by any Act of Parliament.
  • The inception of the collegium system was well-intentioned. In all fairness, it did solve the problem of excessive executive interference. But on the whole, the collegium system is a solution which has proved much worse than the disease. Judges are today chosen on undisclosed criteria in largely unknown circumstances. It is remarked that it is one of the best-kept secrets in the country. The system is completely opaque.
  • The Collegium system of judicial appointments has resulted in incompetent, inefficient, ethically compromised individuals being appointed as judges.
  • The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court. 
  • The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.”
  • The NJAC (National Judicial Appointments Commission) was established by amending the Constitution. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.
  • The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts. 
  • If politicians are involved, what about judicial independence? The judiciary representatives in the NJAC - the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through.
  • The rationale of having the Commission instead of the collegium system is to strengthen the quality of appointments made, promote diversity and sustain public confidence in judicial system.

My View:
India is a democratic country and political winners in elections will rule the nation. They have to have a say in every aspect of country's administration, including judiciary appointments within the frame work of constitution, laws, rules and procedures. The essence is merit & transparency. 

The collegium suffers from: (1) It is neither constitutional nor in compliance of any Acts. (2) No methodology for selection of candidates. (3) It doesn't provide opportunity to all eligible candidates for competing in the selection process, the essence of a democracy. (4) Group of judges sitting in closed room and announcing the selected persons names, without any supporting material, doesn't impress any one.

Constitution has accorded SC extraordinary power of making laws by a judgement only to award justice to the needy but not for usurping powers for appointment of judges not specifically granted by Constitution or Parliament. The present system of Collegium makes Union Law Ministry, a mere secretariat to type out Judges appointment orders is unacceptable. It must have a larger role.

I am sure in the past two decades several meritorious candidates lacking right connections must have missed the deserving opportunity to become Judge. This has lead to sub-standard judiciary today. Lacking authorization, process & transparency Collegium system must be disbanded immediately.

"Among the four pillars of democracy Executive, Legislature, Judiciary and Media - 
none can be taller than Executive"

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