The Supreme Court dismissed on Tuesday a PIL by National Lawyers’ Campaign for Judicial Transparency and Reforms seeking an “independent public” body devoid of the judiciary and the executive to select judges.
With this last challenge getting dismissed, the incumbent collegium system of judges appointing judges is perpetuated. Earlier, the Apex Court struck down the union government’s proposal to form the National Judicial Appointments Commission (NJAC) as unconstitutional.
The only ostensible reason for the dismissal of the latest PIL in the series of challenges to the existing collegium system was that it required a constitutional amendment which the supreme court could not do as it was within the domain of the legislature. Then the obvious question is that how the NJAC brought after necessary amendments were struck down as “unconstitutional”.
However, a division bench of Justices Arun Mishra and UU Lalit in today’s proceedings said: “we cannot amend the constitution”.
Advocates Mathew J. Nedumpara and A.C. Philip for the petitioner organization argued a “public, transparent body” free from judiciary and executive would be more effective than the present collegium system criticized as “Opaque” by the sitting judge and member of the collegium itself, Justice J. Chalemeswar.
The judges said “Your ideas may be good or bad … we are not commenting … but we are dismissing it…. what all you are asking cannot be done without quashing certain constitutional provisions….. can it be done? Can we do it? No” Justice Mishra, the presiding Justice, observed.
The judges also refused to comment on the memorandum of procedure (MoP) brought in by the central government after the NJAC was struck down. It laid down certain procedure like the government could raise objections to the appointment of a person as a judge of the higher judiciary if an adverse report is against him or her.
Naradanews first reported how even after adverse reports, the collegium had earlier this month cleared certain names for appointment as judges. The justices said that the MoP required no “comments” at this stage as it is yet to be “crystallized”. “Can a proposed MoP be questioned? Let it be crystallized ..let it come out…then we will see”.
The petition highlighted that the kith and kin of sitting and retired judges, those powerful lawyers having access to the powers that be, and even representatives of certain corporate houses were being elevated to the judgeship in higher judiciary.
It said the court verdict striking down the NJAC “killed” the fundamental right of an “ordinary lawyer” to be considered for the post of a judge and thus closed the door on reform in the judiciary. The judgment, it contended, has “perpetuated the zone of consideration of judgeship to the few powerful and privileged who have either political connections, who are well-heeled or who have their kith and kin in the higher echelons of the judiciary”.