The Centre is trying to bring about rapprochement despite the intransigence of the SC collegium to make any changes in its 25-year-old opaque system of selecting judges. In it’s latest attempt to make the judiciary accountable to the people as was originally envisaged in the Constitution, Law Minister Kiren Rijiju has written a letter to the Chief Justice of India (CJI) D Y Chandrachud, suggesting the inclusion of government representatives in the two-tiered collegiums for selection of judges to Supreme Court and High Courts.
The letter suggests that government representatives be included in the SC collegium and representatives from concerned state governments be included in the High Court collegium, to dispel the notion that opaqueness shrouds the process for selection of constitutional court judges, reports Times of India.
Rijiju’s letter to the CJI is the latest in the series of much-needed appraisals by constitutional authorities, including the Vice-President and Lok Sabha Speaker, who have also spoken openly about the SC often encroaching into the domain of the legislature.
The collegium system clearly lacks transparency and accountability to the highest authority in a democracy – the legislature which represents the supreme will of the people. None other than widely-respected former SC Justice Ruma Pal had said as much in a speech delivered on November 10, 2011 where she critiqued the “you scratch my back, I scratch yours” collegium system:
“As I have said elsewhere, the process by which a judge is appointed to a superior court is one of the best kept secrets in this country. The very secrecy of the process leads to an inadequate input of information as to the abilities and suitability of a possible candidate for appointment as a judge… Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system…Besides, institutional independence has also been compromised by growing sycophancy and lobbying within the system. The view that the collegium process of selection operates on ‘you scratch my back, I scratch yours’ – is fast gaining ground.”
Another former SC judge Justice J. Chelameswar has said the collegium is “most opaque”, and the “majority gangs up” to shoot down genuine objections against undesirable candidates being chosen to be judges of higher courts.
Many legal observers have pointed out how a select few families tend to dominate the upper echelons of the judiciary, and recommend each other’s scions through the collegium, further fueling the belief that the judiciary in current form operates like a cozy club with an Anglicized left-liberal worldview. Many such collegium products hold barely disguised contempt for the Bharatiya masses, especially the Hindu majority, an outlook not too dissimilar to that held by the British colonizers. Some critics have even called the current higher judiciary a ‘hereditary autocracy‘, unlike any other in the world.
Even the Supreme Court Bar Association has criticized the collegium system, blaming its “give-and-take” culture for a fall in judicial standards and creating discrimination in access to legal relief where “politicians and actors get instant relief from courts, (while) the common man struggles for years for justice.”
In 2014, the government had introduced the National Judicial Appointment Commission (NJAC) Act, which was passed unanimously by both houses of the Parliament. The NJAC was to be headed by the CJI and comprise of two most senior judges, law minister and two eminent persons selected by a panel comprising PM, leader of opposition and the CJI.
But the NJAC Act was quashed as ‘unconstitutional’ by a five-judge SC bench in October 2015, with then CJI Khehar making some astonishing comments in his judgement: “It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society, has not as yet sufficiently evolved.”
If such comments do no smack of elitism and a contempt for the ordinary Bharatiya who casts her/his vote to elect the representatives who govern this country of 140 crores, what does?
As VP Dhankar had recently commented, this rejection of NJAC and the people’s will is unprecedented in any democracy across the world: “We the people — their ordainment was converted into a constitutional provision. The power of the people came to be reflected through the most sanctified mechanism on a legitimate platform through applicable mechanism. That power was undone. The world does not know of any such instance.”
The letter sent by the Law Minister is also being seen as a response to the judicial orders and observations by an SC bench headed by Justice SK Kaul, who is also part of the collegium, to ‘speed up’ implementation of collegium recommendations on appointments and transfers of judges. Government is believed to be raising the Latin maxim ‘nemo judex in causa sua’, often used by the SC in its judgments to convey that no man shall be a judge in his own cause, to fault the SC’s own approach where judges, who are part of the collegium to select judges, are passing orders on the judicial side directing implementation of recommendations they are making on the administrative side.
The power of selecting judges was wrested from the executive and transferred to the collegium by the SC through two Constitution bench judgements in 1993 and 1998. Prior to this unconstitutional power grab, Article 124 of the Constitution provided that the President (read government) will appoint SC judges in consultation with the CJI and such other SC and HC judges. On November 25, the law minister had asked, “What is the difference between consultation and concurrence?… If you expect the government to accept names recommended by the collegium, what is the government’s role?”
