It was wrong on the part of the supreme court to arrogate to itself the power to appoint judges under the collegium system.
By H K Dua
In the constitutional scheme of things, there is a clear demarcation between various institutions—namely, parliament, judiciary and executive. Whenever any organ of the state, any one of these three, exceeds its limits, people sense danger.
In the 1970s, there was talk of a committed judiciary. And later, of the supersession of judges. An eminent judge, Justice HR Khanna, resigned on a matter of principle and conscience. There was turmoil and the people were concerned because the executive, at that time, was crossing the limits prescribed for it.
In the 1993 judgment, which paved the way for the collegium system, the judiciary had crossed limits. Brother judges went on to appoint brother judges. And, you know, when brother judges appoint brother judges, nepotism creeps in, favoritism comes in, and in a collegium, there can be instances of bargaining taking place between one judge and another, with the chief justice taking the better share.
Justice JS Verma was on the 1993 bench, which set up the collegium, a novel institution, which is not prescribed in the constitution. He was for setting it up. Later on, he regretted this decision of the Supreme Court in public. I think he appeared before the parliamentary committee and also expressed this view. Also, in public statements, and in private conversations, he went on saying that a wrong decision was taken by the bench in 1993, of which he was a member. His regret was that the Supreme Court approved of a collegium.
Nowhere in the world do judges appoint themselves. Always, it is an executive decision, but there are checks on the misuse of executive power. That aspect, I think, is taken care of by the Judicial Appointments Commission, which is being provided for.
But I would say that there has been considerable lobbying with the collegium members by judges from high courts. Those who are aspiring to be Supreme Court judges don’t leave any stone unturned to get in there. In the high courts, they retire early and since they want to be in the Supreme Court, they visit the houses of collegium members, trying to bring influences of all kinds. String-pulling is the name of the game in Delhi. That kind of culture, which prevails in the judiciary, leads to malpractices, and should be corrected.
In the process, the quality of justice has declined in the country. I would like to cite two or three cases. Take the Jessica Lal case or the Priyadarshini Mattoo one. There was miscarriage of justice in both. Only after public concern and media noises, ultimately, did the highest court intervene to provide justice. Also, I can’t understand how in the trial courts, and even at the high court level, did a BMW car become a truck, and a man who killed six people on Lodhi Road in the capital of India, got away very lightly. This is because the right kind of people are not being appointed in the highest judiciary.
The collegium neither laid down the criteria for appointment of judges nor said what kind of judges you need in high courts or in the Supreme Court. The Delhi high court has come out with judgments which spell out criteria even for admission to nursery schools. But people do not know what criteria are there for being appointed as a judge to a high court or the Supreme Court.
I am a little worried when a recognized organ of the state exceeds its limit and when a recognized organ of the state thinks that whatever it says is always right. I get equally worried about individuals who think they are always right, worried about the institutions when they think they are always right. Take this aberration of a collegium. It was wrong on the part of the Supreme Court to arrogate to itself the power to appoint judges. That is being set right in the constitution, and that is why I support this bill.
—The author is a former editor of Hindustan Times and a Rajya Sabha member