While the judges-appointing-judges system has belied expectations, scrapping it is not the answer.
Column by Vikas Singh
This is a crucial juncture for the Indian judiciary, when the present executive is keen to do away with the collegium system by bringing in the National Judicial Appointments Commission Bill 2014. The basis for bringing in the bill is the widely-held perception that the collegium system has failed.
While I also feel the collegium system has not lived up to the expectations of the people of this country, replacing it with the National Judicial Appointments Commission Bill is not an answer.
As the head of the Indian judicial family, the chief justice of India can take certain important pre-emptive steps, which will completely thwart the initiative of the government to abolish the collegium system.
The need of the hour is to understand whether the collegium system is the right one or not and then separately consider the reason why it has failed in India.
In my view, the system is perfect for the independence of the Indian judiciary but the way it is being operated at the moment leaves a lot to be desired. Urgent steps are required to be taken to ensure the proper working of the existing system.
In my view, the shortcomings of the present system are:
(1) lack of credibility in the shortlisting of candidates; (2) lack of objectivity in making a comparative analysis; (3) bias or nepotism in the actual selection; and (4) delay in filling up the vacancies.
According to me, immediate steps need to be taken in the appointment of judges to the higher judiciary, and these, inter alia, should ensure the system meets the aspirations of the people of India and is able to thwart criticism from any quarter.
The collegium at the high court should invite names from the bar associations as well as from the state government.
The collegium should provide for certain basic eligibility criteria like the minimum age, minimum return of income, etc. for any person to be considered for appointment as a judge of the high court.
All the names before the collegium should be referred to a select panel of two eminent lawyers of the said high court who shall rate the names on the question of integrity as well as professional competence and any other criteria which may be required by the said panel to rate the names.
If the direct junior or a relative of any of the member of the collegium is on the list being considered for appointment, the said member of the collegium should be asked to recuse himself and the next junior judge should be opted by the collegium. The collegium should consider each and every name before it and then decide the most suitable for appointment as a judge of the high court.
The system should provide that for any vacancy that is to come up in the next three months, the collegium should recommend the names at least two months in advance so that the notification for such appointment is ready on the date of the retirement of the judge and there is no vacancy of any judge in any high court for even a single day.
In so far as the promotion from the lower judiciary is concerned, there should be no quota fixed for them and the collegium should appoint only such persons who meet the basic benchmark as fixed by the collegium for appointment as a judge of the high court. Seniority amongst the additional judges should be a criterion for elevation to the high court but it should have very little weightage in the appointment.
As far as appointment to the Supreme Court is concerned, the five-judge collegium of the apex court should also take assistance of an eminent lawyers’ panel constituted by it to consider the names of the judges of the high court as well as the name of any member of the Bar by rating the candidates on such criteria as the collegium system would want the panel to so rate them.
In the appointment to the Supreme Court, regional representation should only be a guiding factor for appointment and merit and unimpeachable integrity should be the main criteria for appointment to the highest court of the land.
According to me, immediate steps should be taken by the Supreme Court to reinvent the collegium system. This will help restore the faith of the people of this country in the system. The initiative will also ensure there is no attempt by the government to interfere in the matter of appointment of judges.
I strongly feel that adding the law minister in the collegium system is only going to worsen things.
I have a lot of expectations from the present Chief Justice of India RM Lodha. In his short tenure, he has been able to send the message across about maintaining the independence of the judiciary, much more strongly.
—The author is a senior advocate of Supreme Court and former additional solicitor general of India