Former Chief Justice of India Justice Madan Mohan Punchhi, who passed away Wednesday at the age of 81, wasn’t exactly a fan of the collegium system of appointments to higher judiciary.
His death comes at a time when the Supreme Court is once again hearing a matter concerning appointments to higher judiciary, with the Parliament trying to bring the National Judicial Appointments Commission to replace the much-criticised collegium system.
His lecture to this reporter on a wintery afternoon at his Chandigarh Sector 8 residence comprised well-reasoned arguments on why the collegium system was against what the framers of the Constitution had in mind while deciding the issue of appointment of judges of the high courts and the Supreme Court.
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He had after all been part of the nine-Judge Bench that, on October 6, 1993, decided the famous Supreme Court Advocates-on-Record Association versus Union of India case, having delivered a dissenting view with regard to the primacy of CJI in matters of appointment.
In his dissent, he had quoted Dr B R Ambedkar’s speech in the Constituent Assembly to say, “I personally feel no doubt that the Chief Justice is a very eminent person but after all, the Chief Justice is a man with all the failings, all the sentiments, and all the prejudices which we as common people have and I think to allow the Chief Justice practically a veto upon the appointment of judges is to really transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore think that this is also a dangerous proposition.”
He then went on to say, “It is left exclusively to the Chief Justice of the Supreme Court or the High Court, as the case may be, to consult any number of judges on the particular proposal. It is equally within his right not to consult anyone. This is his constitutional primacy and prerogative…Thus on the question of primacy, I conclude to say that the role of the Chief Justice of India in the matter of appointments to the judges of the Supreme Court is unique, singular and primal, but participatory vis-avis the Executive on a level of togetherness and mutuality, and neither he nor the Executive can push through an appointment in derogation of the wishes of the other.”