Sans any accountability and transparency, the Supreme Court Collegium system has been functioning like a “cabal”, says former Law Commission Chairman A.P. Shah, who insists that the system of appointment to higher judiciary has outlived its utility and it should be replaced by an independent appointment commission.
A votary of the National Judicial Appointments Commission (NJAC), declared unconstitutional by the apex court earlier, the former Delhi High Court Chief Justice says the appointment of judges lies at the heart of an independent judiciary, and it is indispensable that the process is transparent.
Architect of several bold judgments including the historic verdict of decriminalising homosexuality, he also calls for doing away with the “impractical” impeachment process and introduce an independent panel empowered to investigate and act on complaints against judges, including the Chief Justice of India (CJI).
“Time and again the Collegium system has proved to be opaque with its members working as if in a cabal. This process of appointment of judges has outlived its utility and it’s time for the Collegium system to go,” Justice (retd.) Shah told IANS.
The “Judges-selecting-Judges” system evolved through judgements of the Supreme Court (SC). The SC Collegium is headed by the CJI with four other seniormost judges as its members which sends its resolution to the government for appointment of judges to the Supreme Court and High Courts.
The recent elevation of Justices Dinesh Maheshwari and Sanjiv Khanna to the Supreme Court, superseding 32 others, reignited the debate on the efficacy of the Collegium system with sitting and former judges expressing their reservation.
Incidentally the Collegium had recommended the elevation of Justices Maheshwari and Khanna overruling its earlier resolution of sending Justice Pradeep Nandrajog and Justice Rajendra Menon to the top court.
“The decision to supersede as many as 32 judges including several Chief Justices of High Courts is not just an issue of concern but yet again proves how faulty is the system. The problem is the Collegium is not accountable to any other authority,” Shah said.
While Justice Sanjay Kaul of the Supreme Court had written to Chief Justice Ranjan Gogoi objecting to the sidelining of Justice Nandrajog, former Delhi High Court judge Kailash Gambhir had written to President Ram Nath Kovind against the elevation of Justices Dinesh Maheshwari and Sanjiv Khanna saying the superseding of 32 judges was “appalling and outrageous”.
Notwithstanding the objections from the judicial fraternity, the Narendra Modi government went ahead with the appointment of the two judges.
Referring to instances where eminent judges have strongly criticised the Collegium system, Shah pointed to lack of clarity on the criteria of the selection of the judges and said several appointments have in the past have reeked of “biases”.
“Sons and nephews of previous judges or senior lawyers tend to get the benefit,” he said, adding that setting up a full time judicial appointment commission independent from the government for the higher judiciary was indispensable.
“The need is to have an independent full-time body which can take up such appointments systematically after laying down a criteria, evaluating candidates on that criteria and selecting them based on that,” he said.
Justice Shah as the Chairman of a citizen collective named “Reclaiming the Republic” has recommended a host of judicial reforms that include the setting up of the commission for the appointment of judges to the higher judiciary.
About the composition of the appointment commission, he said retired judges, jurists and eminent citizens from legal or other fields could be members.
“The essence of this commission would be laying down a criteria for selection with a mechanism for analysing the candidature including their background,” he said, adding that the selection process should be transparent with public disclosure of the names shortlisted candidates.
On the issue of corruption in the judiciary, he advocated for a “Judicial Complaints Authority”, an independent panel empowered to investigate and adjudicate on complaints against judges including the CJI.
“The fact that no judge has been impeached in independent India though six judges have faced it, amply signifies the impracticability of the process. Moreover, except for the impeachment motion there is no mechanism to look into allegations against the Chief Justice of India.
“The need is to have a commission similar to appointment commission, which shall be empowered to receive and investigate complaints and allegations of misconduct or otherwise and recommend and take action against those found guilty,” Shah said.
He also called for scrapping draconian laws like sedition, criminal defamation and criminal contempt of court citing their frequent misuse.