Fireworks are expected today when a five-judge Constitution bench of the Supreme Court takes up the case related to the Collegium system of appointment of judges. Earlier the same bench had scrapped the 99th Constitutional amendment for setting up a National Judicial Appointments Commission (NJAC) to select and appoint judges.
The apex court had fixed November 3, 2015 for taking note of suggestions from senior lawyers and Attorney General Mukul Rohatgi. Suggestions were sought for improving the existing controversial system by which judges appoint judges.
Rohatgi is likely to contest the hearing by the five-judge bench as the Union government wants it to be referred to a larger bench of nine.
Judiciary vs Executive
The Constitution bench comprising Justices JS Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and AK Goel had on October 16 ruled that the Collegium system that’s in vogue prior to the enactment of the Constitutional amendment and NJAC laws would be revived. The bench was concerned with the scathing criticism of this system which many feel produce sub-standard judges as the process is opaque. Therefore, it was decided to that suggestions would be heard for improving it at a later date.
Judges had noted that, “All that was needed to keep the Collegium system on the rails was the unstinted cooperation of the executive and an effective implementation strategy, with serious and meaningful introspection and perhaps some fine-tuning and tweaking to make it more effective”.
It also regretted that, “Unfortunately, the executive did not respond positively, perhaps due to its misunderstanding of the decisions of this court.”
What the 1993 Judgement Said
The Centre is likely to raise a preliminary objection on the jurisdiction of the five-judge bench. It was a nine-judge bench in 1993 that had suggested an improvement in the Collegium system, which was reiterated in 1998.
The nine-judge bench in 1993 held that the Chief Justice of India and a Collegium of two judges will participate in the selection and appointment of judges. Later the Union government sought clarification of the judgement through a Presidential reference in 1998.
On October 28, 1998 the nine-judge bench opined that the CJI must make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or a sitting judge of a high court “in consultation with the four senior most judges of the Supreme Court”.
Regarding the appointment in the high court, the recommendation must be made in consultation with two senior most judges of the Supreme Court, preferably who belonged to that high court.
Larger Bench Argument
The Centre in all likelihood would tell the judges that a smaller bench is not competent to deal with an issue that had been decided by a larger bench of nine judges. Nor can the five-judge bench interpret the verdict delivered by the nine judges in 1993 and later in 1998.
“Any tinkering with the Collegium system by five judges will be impermissible as that can be done only by a nine-judge bench”, a government lawyer said.
Justice Khehar, who headed the bench that quashed the NJAC as unconstitutional, had said:
Help us improve and better the system. You see the mind is a wonderful instrument. The variance of opinions when different minds and interests meet or collide is wonderful.
The Lone Dissenter
The lone but significant dissent of the judgement that had scraped NJAC on October 16 last, Justice J Chelameswar had termed the majority judgement as “unfortunate”. He has asked the judiciary to introspect if the Collegium system has become “a euphemism for nepotism” where “mediocrity or even less” is promoted and a “Constitutional disorder” does not look distant.
He also said in his dissenting judgement that the judiciary should acknowledge that a comprehensive reform of the system is “overdue”. The ever increasing pendency of matters before various Constitutional courts of this country is “clearly not a certificate of efficiency”.
Noted Constitutional lawyer PP Rao recalls the words of Justice Khehar’s judgement which underscores the lacuna in the system of Collegium. “Wrong appointments made deliberately and repeatedly is a matter of serious concern”, he says.
The sensitivity of selecting judges is so enormous, and the consequences of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of judges to the higher judiciary, make wrongful selections, it may well lead the nation into a chaos of sorts. The judiciary needs to be saved from its own erratic Collegia.
Justice Khehar
There are plenty of reasons for referring the matter regarding functioning of the Collegium to a larger bench of nine-judges.
(The writer is a Delhi-based senior journalist.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)