The apex court has been swamped by diverse opinions to reform its collegium system. Fresh guidelines are expected by the time TS Thakur takes over as the chief justice of India
By Venkatasubramanian
As the Supreme Court’s Constitution Bench be-gan to hear proposals on November 3 on reforming its collegium system to recruit prospective judges of the higher judiciary, it raised huge expectations from civil society. Reformation of the collegium system was promised by it on October 16 while qua-shing the National Judicial Appointments Commission (NJAC). The Collegium, created by the apex court in the Second Judges case in 1993, has been under attack, among other things, for lack of transparency about its deliberations and refusal to entertain complaints about the proposed appointees.
But the Bench found the diversity and volume of the proposals too daunting to arr-ive at an easy conclusion. Initially, the Bench believed that by eliciting the views of the senior counsel who challenged the validity of NJAC, and those who defended it, it could identify certain common areas of agreement, and lay down guidelines so as to address the oft-repeated concerns about the working of the collegium. But the demand from the Bar for hearing more voices, even outside the courtroom, convinced the Bench that it needs to broadbase the consultation exercise.
OPEN MIND
The court had never undertaken a consequential hearing earlier after the delivery of the judgment in the main case. A consequential hearing means that judgment in the case is incomplete unless the court comes to a conclusion with regard to the issues it framed for itself. Therefore, with a vacuum in the appointment process and the rising number of vacancies in high courts and the Supreme Court staring in its face, the Bench had to complete this exercise at the earliest. The Bench, fortunately, had an open mind on how to approach the issue, and resolve it, and this proved to be an asset in securing the trust and participation of all stakeholders.
Seeking to involve more people in the reform-exercise, the Bench fixed November 13 as the last date for receiving suggestions from the general public. The Bar Council of India, an important stakeholder in the debate, was asked by the Bench to compile the proposals of all the Bars in the country and submit them by November 14. The Bench then adjourned the case to November 18 and 19 when it would again hear counsels, shortlisted by a panel comprising the petitioners and respondents in the NJAC case.
With the procedure to hear proposals for reform streamlined, the Bench seemed hopeful that it could lay down fresh guidelines for adoption by the neo-Collegium by the time the next Chief Justice of India (CJI), Justice TS Thakur assumes office on December 2 after the outgoing CJI, HL Dattu retires.
It was assumed that with Justice Dattu making his recommendation to the government to elevate Justice Thakur as the next CJI in view of his seniority, he was not likely to preside over the collegium meetings during the last one month in office keeping in view propriety and convention. Therefore, a brief adjournment of the case to facilitate consideration of suggestions from all sides was expected not to hamper the working of the Collegium in any manner.
REFORM PROPOSALS
Although the presiding judge of the five-judge Bench, Justice JS Khehar, ruled out any drastic reform of the Collegium beyond the fundamentals laid down by the previous nine-judge benches in the Second and Third Judges cases, he identified four broad categories under which the reform proposals would be considered. They are establishment of a permanent secretariat for the Collegium, laying down of eligibility criteria for the prospective judges, transparency guidelines and a mechanism to consider complaints against the proposed judges. The strength of the current Bench, even if smaller than the earlier ones, will not be seen to have compromised its competence to lay down effective guidelines.
The Supreme Court’s Collegium, comprising the CJI and four judges of the Supreme Court who are senior-most after the CJI, has been an enigma. Created by the court’s nine-judge bench in the Second Judges case, the size of the Collegium was originally three (CJI +2), but increased to five by another nine-judge bench in the Third Judges case in 1998.
The Collegium was given the responsibility of recommending the names of prospective judges of high courts and the Supreme Court for appointment by the president, acting on the aid and advice of the union council of ministers. The recommendations by the Collegium could be returned by the president for reconsideration only once; if the Colle-gium reiterated them, they are binding on the president. However, if two out of five collegium members opposed a recommendation, it is not so binding on the government.
However, the collegium had several aberrations. One was that it didn’t systematically evaluate the suitability of proposed judges on the basis of certain parameters. It is, therefore, refreshing that there is now a consensus that there should be a full-time secretariat to assist the Collegium for this purpose.
COLLEGIUM SECRETARIAT
The composition of this secretariat is now open to debate: some have suggested former bureaucrats; others have proposed academics. The parameters of the proposed candidates to be considered by the secretariat also vary: the number of cases argued by a lawyer, the number of judgments delivered by a jud-ge, income range, integrity, etc.
Senior advocate Gopal Subramaniam has suggested the setting up of an advisory board comprising three eminent persons to assist the secretariat to obviate generation of any false data by the executive in order to oppose the appointment of independent judges. He feels it would help the collegium receive an independent input in such cases.
There appears to be a sharp cleavage, however, on the extent of transparency that may be required. Subramaniam, for instance, told the Bench that the proceedings of the Collegium ought to be confidential. Others, however, have suggested that the reasons for recommending a candidate and the procedure adopted for the purpose must be specified on the Collegium’s website.
Justice Markandey Katju, a former judge of the Supreme Court, suggested that the Collegium’s interaction with the proposed judge must be televised, video recorded and archived. “After all, the people are supreme in a democracy, and the people have a right to know what transpires in the collegium meetings, because ultimately it is they who would be affected if a wrong appointment is made,” he said in an article in The Wire. According to him, public transparency, both about what the Collegium is looking for in a judge and what the judge herself or himself has to offer, is essential. Subramaniam, however, has suggested closed-door interviews of the proposed judges by the collegium.
Subramaniam also submitted that if any judge or candidate makes a “courtesy call” on the chief justice or any of the members of the Collegium, it must be treated as having incurred disqualification for appointment. He was also critical of the current practice of elevating only the chief justices of high courts to the Supreme Court, because they are high on all-India seniority. The center too expre-ssed similar displeasure. A proposal to in-clude three senior-most judges of high courts for consideration for elevation to the Sup-reme Court is now before the Bench.
Adherence to seniority alone may not endow the Supreme Court with the talent, character, far-sightedness, ability, competence, innovativeness and skills required for the future, Subramaniam told the Bench.
He has submitted that only complaints made by a group of senior lawyers of stature and integrity against a proposed judge must be entertained by the collegium. Subra-maniam also suggested reforms with regard to the transfer of chief justices of high courts and post-retirement jobs for judges, which he claims, have seriously impaired the independence of the judiciary. As these do not fall under the four categories identified by the Bench, it remains to be seen whether it is receptive to these ideas.
The Bench is also seized of a report filed by Additional Solicitor-General Pinky Anand and senior advocate and counsel for petitioner, Arvind P Datar. The report, prepared following a request from the Bench, compiled 63 diverse representations from various associations and individuals. Noteworthy among them are: The requirement to publicly disclose the names of proposed judges 30 days before their consideration by the Collegium, examination of any complaints against them by a panel of retired judges, constitution of an appraisal committee to assist the proposed secretariat, written examination for elevation to the Supreme Court, consideration of factors other than seniority for elevation to the Supreme Court, full disclosure about the relative-judges of the candidates and minutes of the collegium meetings.
As Datar said at a discussion on the NJAC verdict on November 5: “The effort of the Bench, through this consequential hearing, is to iron out the creases, not alter the fabric.”