For the reasons best known to the government, it changed its strategy to address the lacuna in collegium system of appointment of judges, which could presumably be removed by referring the issue to a larger nine-judge bench which had introduced this highly controversial mechanism in 1993.
During the hearing of a batch of petitions that sought major changes in the functioning of the opaque collegium system, which is in secrecy and out-of-bounds for the RTI Act, Attorney general Mukul Rohatgi, Solicitor General Ranjit Kumar, constitutional lawyer K K Venugopal and Fali S Nariman, among others, restricted their contentions to wholesome changes in the selection process as they refrained from asserting that this issue deserved consideration by a larger bench.
“There is a need for greater transparency in the appointment of judges for the higher judiciary through the collegium system,” they said unanimously in their perception about the mechanism which doesn’t find place in the Constitution.
A five-judge bench led by Justice J S Khehar that overturned the 99th constitutional amendment which replaced the role of collegium with a six-member high-power National Judicial Appointments Commission (NJAC) on October 16, had itself observed that the system they have chosen was neither fool-proof nor transparent, factors essential for independence of the judiciary.
All stakeholders, including the Union and state governments, lawyers and civil society groups have now been asked to submit their suggestions recommending improvements in the collegium system to Ranjit Kumar and another senior lawyer Arvind Datar.
In addition, a plethora of suggestions has been received by the judges who scrapped the NJAC. The suggestions are a strong indication that the collegium system is unfit to make meritorious selection of judges and it does suffer from various limitations, including being tilted in favour of incumbents who are relatives of judges or noted lawyers.