Former Attorney General and senior Supreme Court lawyer Soli Sorabjee says collegium system of appointing judges should be junked. But judiciary must have the final word in any new system. Excerpts from an interview with Maneesh Chhibber.
The government wants to junk the collegium system. Your thoughts?
It’s not just the government that wants to replace it. Former judges, lawyers, legislators — everybody wants (to replace) it. But…what do you replace it with? The collegium system has two drawbacks. First, only judges make selections. Secondly, this system has failed in practice. So the government invited all types of people…to discuss the issue of setting up of a Judicial Appointments Commission (JAC). Now, the issue is how many members should the commission have? In my mind…it doesn’t matter as long as eminence of judiciary is maintained; they must be in majority. Not because judges are gods, but because they know the work of high court judges and lawyers.
So, you are for primacy of judiciary?
Primacy. I don’t know whether we can call it primacy. But, yes, it must have edge over the others… But they can’t be the only ones who decide. Civil society and government… have to play a role.
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Do you agree with the Law Commission’s suggestion that it should be a seven-member body — four SC judges, Law Minister, one eminent jurist and one eminent member of civil society.
I have no objection. But how do you say who’s an eminent jurist? Actually, eminent jurist is not the word used in the Constitution. It is distinguished jurist. So I said (at the meeting convened by the law minister), use the same word. We want to have judges who are able, independent. When I say independent, I don’t mean just the Executive. They must also be independent of the economic centres, groups.
What is the main failing of the collegium system?
The main failing was that they (collegium) didn’t have inputs from any other source. And… the commission should be a full-time body with a full-time secretariat. You can’t meet over tea-coffee and decide.
What should be the process of appointment by the JAC? Should it be open to public scrutiny?
Yes, it must be made public that so and so has been recommended for appointment. But there is no reason to give why somebody was not made a judge. That will cause unnecessary embarrassment to such a person.
Should the Intelligence Bureau be involved in the process?
IB can be asked to give an input, but it can’t be the final input. Let me tell you a true story. There was a candidate for judge and the IB said he drinks so much he is known as boozer. I said how can you say so? So I checked. It came out that this man had never touched liquor in his life but boozer was the nickname given to this man by his friends. This is just an illustration. Whatever IB says, you must take it with a big pinch of salt.