A DAY after demitting office, former Supreme Court judge Shiva Kirti Singh on Sunday said the tussle between the judiciary and the government over the power to appoint judges is “for nothing” since the existing system of judicial appointment neither commands faith of the people nor is transparent.
Speaking to The Indian Express, Justice Singh emphasised that collegium system fails to provide satisfactory reply if doubts are raised over choices made by the senior Supreme Court judges and therefore, people as well as lawyers in the zone of consideration are left dissatisfied.
He underlined that rise in aspirations of the people called for the need to “go beyond the collegium system” and evolve a “better mechanism” even if it may mean “end of the collegium system”.
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He added that “if the government means business” and “it wants to create something that serves the nation”, it should bring in a new law to set up an independent and autonomous body for appointing judges in high courts and in the Supreme Court after extensive deliberation with all stakeholders. He added a caveat that reforms, however, presumes bonafide intention on the part of the government in ensuring independence of the judiciary and in having people of impeccable characters in the body that would appoint judges.
Favouring eligibility criteria, objectivity and transparency in appointing judges, Justice Singh, said he was suggesting a new system because justice should not only be done but it must also appear to have been done, especially in matters of selection of judges so that people have more faith in the system.
He backed Justice J Chelameswar in asserting that dissent of members of the collegium should be put in writing if they have differences regarding a candidate’s elevation as a judge. This, Justice Singh said, would only be a minor change in the whole system but it would give the government a better sense of the situation.
At a time when there is a impasse between the government and the judiciary over finalising a new Memorandum of Procedure (MoP) that would guide the future appointments, Justice Singh said that MoP will also fail to provide a long-term solution since the basic system will remain the same where people have no access to information.
About bringing in the Uniform Civil Code, he said the government should decide the timing of it and that there should be no objection if a common code is brought in keeping core religious practices immune from its ambit. “The government has to take the initiative and create a suitable environment. Yes, sometimes pressures have to be created if basic human rights are affected because of some wrong practices. If reforms are required with change in times, every community should be ready to accept it. Sometime, people relent after some pressure,” Justice Singh said. However, he cautioned that Uniform Civil Code should not become a matter of political advantage.
Asked about the stand-off between the two organs, Justice Singh said: “This tussle between the government and judiciary is for nothing. I mean if the basic system remains the same, people will still have grievances. Whether final say is of the government or it is of the Supreme Court will not have any significant impact in the mindset of people and eligible lawyers. They must have faith and all eligible people have been considered and considered on objective criteria by those who are interested in the welfare such as senior advocates, retired and serving judges etc.”
He said collegium may be a good system but there is no satisfactory reply if people raise doubt. “Why are you deciding among a few people? There is no public knowledge what are you testing and whether all those who are eligible have been considered. So question marks keep on rising? I have faith in the system that is operating now but we must keep improving the system so as to have the confidence of people and confidence of politicians as well,” he added.
Although manner of judicial appointments have been outlined by the Supreme Court in Constitution Bench decisions, Justice Singh said, the need of the hour is to forget the past. “Let us think out of the box. Let us devise a new system if it can serve us better. Go beyond the judgments. Go beyond the collegium. Have a commission on the lines of UPSC which has to be independent and autonomous,” he said.
He added: “This tussle is not good. Sharing of power when the system itself is not transparent and people are not happy, sharing of power will not make much difference. We have to think of a new system where this tussle ends. Get an independent, expert, autonomous body with people of impeccable stature.”
Maintaining that independence of judiciary has to be protected in all situations, Justice Singh said the National Judicial Appointments Commission (NJAC) was perhaps a result of the government’s discontent with the existing system where power was sought to be taken away from judiciary without addressing other concerns and so it was quashed by the court.
“NJAC was only a show of dissatisfaction against the judgment and not taking care of the distrust. Judiciary was doubtful about the intention behind it… judiciary will not tolerate any attempt to impact its independence. A judicial mind is very watchful of any such attempt. This fear has to go. The mistrust has to go and we must find another mechanism,” he said.
Justice Singh was not on the Constitution Bench that quashed the constitutional amendment to replace collegium system with NJAC.
Justice Shiva Kirti Singh
Justice Singh belongs to a family of lawyers. His maternal grandfather B P Sinha was the Chief Justice of India from 1959 to 1964 and his father was a judge in the Patna High Court. He was designated a senior advocate at the age of 39. Became a judge in the Patna High Court in 1998; elevated to the Supreme Court in September 2013 from Allahabad High Court.
He was on SC benches that:
* Sought a response from the Centre as to whether it wants to bring the Uniform Civil Code.
* Nudged the Law Ministry to clear a proposal to amend a 147-year-old legal provision that compels Christian couples to wait for at least two years for divorce whereas the period of separation is one year for other religions.
* Declared as unconstitutional Punjab’s law on terminating Satluj Yamuna Link canal agreement with neighbouring states.
* Paved the way for the all-India common medical entrance test through NEET.
* Ruled in favour of a state government’s power to impose entry tax on goods coming from different states.
* Put the Harish Rawat-led Congress government back in the saddle in Uttarakhand.
* Approved Kerala’s liquor policy that prohibits drinking in public.