Thursday, March 30, 2023

Judicial Oxygen

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Elevation of judges to the Supreme Court under the collegium system has been fraught with controversy, says a legal luminary who wrote this piece exclusively for India Legal

THE method and procedure of elevation of judges to the high court in the collegium system and the NJAC system is virtually the same. Public opinion is of the view that the collegium system has created hierarchical tendencies and a sense of subordination among the chief justice and judges of the high court. Both are given the feeling that they have to be always in the good books of judges of the Supreme Court, more particularly the collegium judges and state judge of the Supreme Court. The interference of the state judge in the Supreme Court is heavily felt in matters relating to administration of high court affairs and he wields extra-constitutional authority.

It is believed that in the collegium system, each judge concerns himself only with matters where he has a personal interest and he avoids unnecessary conflict with his colleagues, irrespective of the merit or demerit of the issue under consideration. The undue scope for arbitrariness prevalent in the collegium system always makes judges of the high court more obeisant to the state judge of the Supreme Court and the collegium judges, otherwise he would have to face the risk of arbitrary transfer.


The collegium system was devised with the object of filling up vacancies in high courts in a timely manner. Further, the persons to be elevated should be merited with good integrity so that there is quantitative and qualitative disposal of cases. But this objective has totally failed. Vacancies remained unfilled for unduly long periods. In every high court, there are 30-40 percent vacancies since the collegium system came into being. This is because the collegium did not enjoy a free hand. Judges who were elevated were mostly inefficient and incompetent to deal with civil and criminal appeals which constitute more than 50 percent of the pendency in each high court.
Protagonists of the collegium system ask why the government did not put up stiff objection if the names were not worthy enough? The answer is two-fold.

The nine-Bench judgment in the Judges’ Case makes it mandatory on the part of the government to accept the recommendation after reconsideration by the collegium. Many times, the government and the collegium mutually work on a barter basis to clear the names for elevation to the Supreme Court. But the failure of the government cannot be a reason to stop parliament from making a law to revamp and streamline the procedures for elevation to the higher judiciary. It is exactly for this reason that the parliament enacted the NJAC.

However, the provision for eminent persons in the NJAC also raises some questions:

  • Who is the eminent person?
  • Should he necessarily be from the field of law?
  • What is the criteria to define an “eminent person”?
  • Will he be a threat to the independence of the judiciary?
  • Is the power of veto given to an eminent person undesirable and a threat to the independence of the judiciary

Under what circumstances can the eminent person be removed?In the ordinary generic sense, an eminent person is one who is held in high esteem by society because of his excellence in any walk of life. To insist that he be only from the field of law is not desirable. The legal scholarship of the person recommended would have been dealt with by the high court collegium and the said recommendations should be based on objective material. Besides, judges of the Supreme Court in the NJAC will guide other members in the matter.


Eminent persons should be informed and knowledgeable and as representatives of the people, would participate in the selection process. Such provision would be in tune with the preamble of the constitution.
In the collegium system, the veto power was being arbitrarily and rampantly exercised to scuttle valid and genuine proposals, and was, by and large, guided by personal likes and dislikes. Unanimous recommendations made by the collegium system for elevation to the Supreme Court were largely based on mutual compromises among collegium judges to scuttle the scope of the government to resist the recommendations.

In England, the Judicial Commission has some six laymen as members and they participate in the selection of judges for the Supreme Court. To argue that the NJAC is a threat to the independence of the judiciary is anathema to the democratic ethos.

In fact, the collegium system has dented the true spirit and independence of the judicial system. Power corrupts, while absolute power has corrupted the collegium system. To prevent the judicial system from crumbling upon its own weight, timely reforms need to be taken. The triumph of the NJAC would be the triumph of justice, truth and democracy.

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