WHY MERIT TAKES A BACKSEAT IN COLLEGIUM SYSTEM

Chairman, Law Commission of India, Justice AP Shah in conversation with Hindustan Times’ Bhadra Sinha, on the collegium system and the proposed Judicial Appointments Commission (JAC).

Please identify the main problems with the collegium system of appointing judges?

The idea of concurrence with the Chief Justice of India’s (CJI) decision in appointing judges was rejected by the Constituent Assembly, as it was not in favour of placing total reliance on the assumption of impartiality or soundness of judgment of the CJI. However, the Court ignored the rejection and seized the power to appoint judges in 1993. Under the present system (the collegium system), the criteria and grounds on which judges are appointed are not disclosed. This lack of transparency and accountability results in a democratic deficit.

Do you agree that non-transparency in the system of appointing judges has led to considerable decline in the quality of judicial appointments in the country?

The Judiciary has complete control over its composition leading to a club-like attitude. It leads to tradeoffs among members of the Judiciary to secure appointments of their choices, giving rise to sycophancy and subservience. Merit often takes a backseat.

So the fact that judges themselves are doing the selection is no guarantee that the most appropriate person is chosen for a post?

Certainly not. In a system which lacks transparency and appointments are made on the basis of sycophancy, rarely would truly great judges like Krishna Iyer, PN Bhagwati or Vivian Bose be appointed.

Can you recall any specific instance when a non-deserving person had been recom- mended or a deserving person ignored for the position of a judge?

Many Judges of outstanding calibre, for example, Dr. Dhananjay Chandrachud, Sanjay Khanwilkar and Sanjay Kishan Kaul, have been overlooked despite being senior to many of the recent appointees. Fortunately, the present CJI has made some fine appointments from amongst the lawyers, the likes of Rohinton Nariman and Uday Lalit.

Should judges have majority in the proposed Judicial Appointments Commission?

Yes, there should be a majority of judges. In my opion, the composition should be something like this: The CJI, three seniormost judges of the Supreme Court (SC), the Law Minister, an eminent jurist and an eminent member of the civil society. The presence of a larger number of judges in the Judicial Commission is essential to ensure the judiciary’s independence from the executive. In South Africa, where judges are in minority in the Commission, the appointment process has been virtually hijacked by the executive.

Should there be a specific criteria prescribed for selection of judges?

In my view, such requirements should not be statutory. Criteria such as academic qualifications and excellence, experience as a lawyer, number of judgments reported, number of judgments written, knowledge of the Constitution and laws can serve as a guide for the Commission.

Why can’t judicial appointments be brought under RTI ambit?

In view of the judgment of the Delhi High Court, the office of the CJI comes under the ambit of RTI. The appeal on the case is pending in the SC.