Terming the quashing of the NJAC Act as unfortunate, Justice J Chelameswar, the lone judge who dissented on Friday, asked the judiciary to introspect if the collegium system has become “a euphemism for nepotism” where “mediocrity or even less” is promoted and a “constitutional disorder” does not look distant.
Authoring the minority view in the 4:1 judgment, Justice Chelameswar noted: “The question is what is the formula by which judges who can decide cases quickly and also generate confidence in the masses and litigants be produced. What are the qualities which make a judge decide cases quickly and also generate confidence.”
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According to Justice Chelameswar, the judiciary should acknowledge that “a comprehensive reform of the system is overdue” and the ever increasing pendency of matters before various constitutional courts of this country is “clearly not a certificate of efficiency”.
He did not agree with the other judges on the bench who said primacy of the judiciary in appointments of judges is a basic structure of the Constitution.
Expressing disagreement over keeping judicial appointments an exclusive domain of the judiciary, he said: “Primacy of the opinion of judiciary in the matter of judicial appointments is not the only means for the establishment of an independent and efficient judiciary. To assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved.”
Stressing the need for wider consultation before appointing judges, he said: “To wholly eliminate the Executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people.”
He said total exclusion of the Executive has no parallel in any other democracy and it would be destructive to the basic feature of checks and balances. Also favouring inclusion of members of civil society groups as “eminent persons” in the NJAC, Justice Chelameswar held that “to believe that members of the judiciary alone could bring valuable inputs to the appointment process requires great conceit and disrespect for the civil society.”
The judge attacked the collegium system, citing instances in the last 20 years when judges’ appointments triggered
controversies and decisions were taken behind closed doors. “There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this court who are not lucky enough to become the Chief Justice of India,” he added. Justice Chelameswar underlined that allegations of unworthy appointments abound in the judiciary but the collegium provides no mechanism for audit or qualitative analysis. “Such systemic deficit has pathological consequences,” he said.
He regretted that a step towards judicial reform “unfortunately, failed to secure the approval of this court, leaving this court with the sole responsibility and exclusive accountability of the efficiency of the legal system”.