Justice Jasti Chelameswar of the Supreme Court of India has taken the lid off the proverbial Pandora’s Box through his comments on and with his letter to the Chief Justice of India (CJI) on the Collegium system of judges appointing judges to the Supreme Court and all the High Courts in India.
At least three former Chief Justices and a few other retired justices of the Indian Apex Court have gone on records to echo the views of Justice Chelameswar and criticize the veil of secrecy shrouding the system—a process perpetuated by the Top Court since late 1990s when a bench headed by the then CJI A.M.Ahmadi held that the Collegium shall alone be the appointing authority.
How is this collegium formed? Under the head of the CJI, four other senior-most judges of the Supreme Court comprise this collegium. The latest in the series is the central government’s endeavour to bring the National Judicial Appointments Commission. The Apex Court struck it down as unconstitutional and an attempt to interfere with the independence of the judiciary. Thus the “opaque” (to quote Justice Chelameswar) collegium system continues.
However sweeping statements like the one made by former Justice Markandey Katju as quoted that “Collegium only favours corrupt judges” may be out of place, for, Katju, a man of unimpeachable integrity, himself was selected by the very collegium. There are good bad indifferent in every walk of life.
However, the SC verdict means that the old collegium system of judges appointing judges in a secret manner behind the veil would continue. This has the dangers of nepotism, favouritism, caucus, coterie politics. Appointments have been done under the collegium system secretly. For the high courts, the respective chief justice of the high court concerned along with the SC collegium and for the supreme court, the Chief Justice of India along with four next senior most judges choose the candidates to be appointed as judges. This has been of late criticized of judges favouring a particular candidate for the job. That does not mean that the present NJAC, struck down as “unconstitutional” is all that great.
There too are shortcomings which cannot be overcome and would result in political patronage. Even in this collegium system ‘lego-political patronage’ is being whispered in the judicial power corridors. The moment anyone is appointed there are many anonymous letters and whispers that the particular candidate has been favoured and doled out the largesse for “such and such reasons”. The reasons vary from person to person.
Nasty incidents of even petitions being filed challenging the appointments have taken place in the past. In the din what has been forgotten is a cohesive National Judicial Commission, NJC, a representative body of the executive and the judiciary comprising the Prime Minister, Chief Justice of India and three or four next senior most judges, Leader of Opposition, Speaker of Lok Sabha and Chairman of Rajya Sabha, three or four eminent jurists with no blemish, equal number of eminent citizens from different walks of society, like, say, law academicians, scholars, sociologists, even representatives of blemish-less NGOs etc. This collective body would not only select the candidates to be appointed as judges of the supreme court and various high courts but would also entertain complaints against them as well as complaints against the sitting judges and would inquire into the complaints.
But the very first step is the selection process which should be transparent and should not be veiled in secrecy. The names of the shortlisted candidates should be given wide publicity not only in traditional media and TV and other news channels but also in social media, perhaps now the most powerful media and objections/criticism should be invited from the members of the public as done in many advanced countries.
Secondly, the NJC should reject or accept a candidate for the job of a judge either in the supreme court or in any high court, after considering the public objections/criticisms with a speaking order.
Thirdly the respective state governments should form similar panels or SJC for the appointment of judges in district and lower judiciary.
When contacted former CJI, V.N.Khare said that “even when you go to buy vegetables you will test every vegetable and choose the best and more so in the case of the judiciary, as it is the last hope of a common man, and hence selection should be unscrupulous.” Justice Khare favours a larger body like the proposed NJC and points out how in many countries names of the shortlisted candidates are published widely inviting public opinion. So that the common citizens know who are shortlisted and
For, judiciary, the last hope of the common man, especially when Indians have lost faith in other wings of the system, shall not be allowed to be doubtful. Caesar’s wife must be above suspicion.