Over 33 years ago, he was the first person to object to interference by the executive in appointments in the higher judiciary, approaching the Supreme Court to seek primacy of the judiciary in such matters. His name — S P Gupta versus President of India and others — remains a reference point whenever the debate over such appointments is reignited.
Today, however, Gupta, a former Uttar Pradesh advocate general, says the collegium system has failed. Asked if the collegium system — he was also party to the second judges case (Supreme Court Advocates-on-Record Association and another versus Union of India case) in which the apex court brought in the collegium system — has outlived its utility, the jurist replied, “Yes. But it has outlived its utility because it is a system without any clear methodology for the selection of talented, able, and trustworthy judges. In the present system, there is no objective methodology for selecting judges.”
But if not the collegium system, then what? Can the government’s attempt to establish a National Judicial Appointments Commission be the answer?
“I have no objection to the Judicial Appointments Commission provided they adopt and follow a methodology laid down in black and white as a constitutional norm,” he said. “Without a clear, transparent methodology, no system will work. After all, why should we expect that the Judicial Commission will not commit the same mistakes that the collegium system did? The commission will also be manned by human beings who, just like the executive in the past and the judiciary at present, are fallible and susceptible to personal and political influences.”
He added that “any new methodology or process should be founded on certain principles or norms, such as equal opportunity to all persons to prevent favouritism and nepotism, and selection based on open merit, preferably by a competitive exam”.
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As far as the question of primacy is concerned, Gupta said that the word “primacy”, whether of judiciary or of the executive, must be clearly defined.
“Primacy should be in the methodology. Judges don’t have the infrastructure to find out who is most suited, who is most honest, etc. That is where the executive comes in. The executive could act as a watchdog in the new system. From the experience of the past two decades, primacy should not solely be in the hands of the judiciary. The judiciary should not be given that power because it is not accountable to anyone. Lack of accountability and objective methodology of selection have caused the collegium system to fail.
Transparency will not come by making the system more democratic and inclusive. Transparency will come by creating internal checks and balances between the executive and the judiciary, which will ensure accountability as well as preserve the sanctity of the process of selection of judges,” he added.
Asked if Justice J S Verma, who penned the majority view in the second judges case, was right in saying that the problem was in the implementation of his judgment, Gupta replied that the judgment left much to be desired.
“When I argued the case, I never thought if primacy is given to judges, they will conduct themselves in such a manner, create havoc (in matters of appointments). I think when Justice Verma wrote the judgment, he and other judges must have thought that the trust and honesty that existed earlier was still there. But, unfortunately, they were proven wrong. They should have established a clear methodology of selection by the collegium and laid down guidelines to prevent infirmities from creeping into the system. That was the problem with the judgment,” he said.