During the hearing of the bunch of petitions challenging the constitutionality of the National Judicial Appointments Commission (NJAC), Attorney General Mukul Rohatgi had told the five-judge Bench of the Supreme Court that the collegium system was “dead and buried forever”, and wouldn’t be revived even if the Bench quashed the NJAC.
Last week, the Bench by a 4-1 majority declared the constitutional amendment to replace the collegium system of appointments to the higher judiciary unconstitutional.
But while doing so, the Bench also acknowledged the problems plaguing appointments to the higher judiciary. Among them is what the Law Commission of India has described as the “uncle judges” syndrome.
From November 3, the Bench headed by Justice J S Khehar will start hearing suggestions, especially from the government, “to consider introduction of appropriate measures, if any, for an improved working of the collegium system”. In his part of the judgment, Justice Khehar wrote: “Help us improve and better the system… The variance of opinions when different minds and interests meet or collide is wonderful.”
Despite a strong reaction from Finance Minister Arun Jaitley, himself a lawyer of repute, it is now incumbent upon the government to assist the court in ensuring that the collegium system is rid of the various ailments afflicting it. Here are a few suggestions that the might make to the Supreme Court.
The biggest problem with the collegium system is that it is completely opaque — and any system that is not transparent will be open to misuse. To begin with, therefore, the entire appointment system needs to be opened up to the Right to Information (RTI) Act, so that any citizen can seek and get information about the process through which a judge was appointed.
Information like names of advocates considered, bio-data of each candidate, why the collegium zeroed in on him/her while rejecting another, the copies of various forms filled by the candidate, dissent note, if any, by any member of the collegium, reasons why a High Court Chief Justice was ignored for elevation to the top court in favour of another HC CJ who was junior to him, all should be accessible under the RTI Act.
Consider this (hypothetical) situation: Three lawyers take a competitive exam for the subordinate judiciary. Two clear the test, and are appointed as magistrates; the third flunks and becomes a lawyer. After about 25 years as judicial officers, the two who had cleared the exam are considered for elevation to the Bench by a High Court collegium, comprising, ironically, the third lawyer, who, after a few years of practice, had been directly elevated to the Bench of the HC. Nothing wrong in that, except that this candidate was related to a former judge of the same High Court, and was elevated despite a lacklustre performance as a lawyer.
The instance of three additional judges of the Punjab and Haryana High Court being transferred to other High Courts even though none of their close relatives were practising in the same HC last year was particularly questionable because several other judges, appointed along with these three judges, had blood relatives or spouses practising in the same court but were not transferred. Many retired judges, including former Supreme Court judges, questioned the transfers.
To make the working of the collegium transparent, the Supreme Court and the government could simply peruse the 230th report of the Law Commission of India, submitted in 2009.
In its report, the Commission had said, “Sometimes it appears that this high office (HC Judge) is patronised. A person whose near relation or well-wisher is or had been a judge in the higher courts or is a senior advocate or is a political higher-up, stands a better chance of elevation. It is not necessary that such a person must be competent because sometimes even less competent persons are inducted. There is no dearth of such examples. Such persons should not be appointed, at least in the same HC.”
It had also said that the “uncle judges” syndrome could be eliminated by not posting any judge in a High Court where his/her kin was practising. The report had pointed out that government officers — Class II and upwards — were not given postings in their home districts, and suggested that judges should similarly not be posted to the same HC where they have practised as lawyers.
The forthcoming hearing should be used as an opportunity by the government to address its concerns — something it claimed to have wanted to address through the NJAC — by suggesting workable solutions aimed at making the collegium system transparent.
The aim should be to ensure that only the best make it to the Bench — because they know the law, and not because they are related to serving or retired judges, or because they were once juniors of a member of the collegium.