Don’t Junk The Collegium System Only Because Of A Few Dubious Judges
Beni M. Chatterji, Senior Advocate
The author, an eminent Senior Advocate and tax expert, candidly concedes that the non-transparent Collegium system has its defects because while a few persons of sterling character and ability have been left out from consideration, a few persons of dubious character have been appointed Judges. However, he argues that these defects can be rectified and there is no justification for compromising with the independence of the judiciary
Executive and Judiciary are up for collision course or there is any possibility of mutual understanding to solve this monumental constitutional crisis?
This crisis has mainly occurred due to few wrong choices for elevation which resulted in some judges with sterling character and ability having been left out from promotion and few very ordinary ones with doubtful characters have made their place in higher judiciary.
In my opinion this alone cannot be a reason for the executive to sneak in the process of selection of judges for higher judiciary.
The free and impartial judiciary means total liberty of presiding judges to try, hear and decide the matters which are placed before them. This will be seriously compromised if executive gets in the selection of judges for higher judiciary. The independence of judiciary has been zealously protected by the constitution and any attack on it will be an attack on the democracy. Judicial review is basic structure, whereas free judiciary is the essential feature and assurance of faith enshrined in constitution.
As per the Supreme Court in Kartar Singh Matter (1994) 3 SCC 569
“The Independence is not limited to insulating the judges from executive pressure alone, its sphere extends to many other impeccable zones of pressure or prejudices.”
Tinkering with the well established procedure of collegium system will be a grave mistake and will hugely compromise impartiality and independence of judiciary which is the mandate of constitution.
No doubt some doubtful elements have sneaked in the higher judiciary but the collegium system has also given outstanding judges with sterling performance and impeccable characters.
I am, therefore, of strong opinion that with some appropriate corrections, the collegium system should be retained.
Shri Narendra Modi, Mr. Arun Jetley and Mr. Ravishankar Prasad are known advocates of the independence of judiciary, therefore, it is all the more expected from them that they will insulate the judiciary from all kinds of pressure and prejudices.
See also: Can A Litigant Be Allowed To Have A Say In The Appointment Of A Judge?
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i agree with the author. Independence of judiciary can never be compromised with Executive incursions.
Even in the USA if one goes through the history of judiciary its independence were never to be allowed to be compromised by people.
People by electing a government for 4 or 5 years cannot allow the government to interfere in the system of separation of powers as per the existing articles of the constitution of india, it is indeed a detailed constitution with original 365 basic articles.
Even constitutional amendments cannot mangle the constitution of india.
All advocates as also all Bar councils question the government idea of intrusion as it is obvious this government has a plateful of its own legal issues that it wants to be compromised is the principle with which this 5 year government though not sure whether it could completely serve the term .
it is obvious why Manmohan sigh govt fell every one knows as it also toyed with reckless ideas as it was getting its plate full of several intangible issues like coalgate, 2G Spectrum & on.
If modi is prudent he shd drop his great idea of interfering with judiciary, after all water finds its own level wherever you go!
What is most crucial in selection of any public authority, including the Judges at HCs & SC, to serve We the People is the transparency, fairness, objectivity and reasonableness in the entire screening & selection process. Selection cannot be arbitrary irrespective of who selects. The Constitution does not empower the CJs of HCs to hand-pick Judges at his whims and fancy. India has seen the frauds and scandals committed by the Collegium system that is absolutely undemocratic and unconstitutional & must be scrapped fast. Proposed change in the system has nothing to do with Congress or BJP ruling at Centre. Further, We the People, must have the Right to Recall incompetent, corrupt and rogue Judges since their continuation in service cannot be in larger public interest of justice to We the People.
I very much agree with the author. The Govt seems to be returning to the era of committed judiciary.
Parantap Chandurkar
Collegium – Unconstitutional, Secret and Scandalous – By the Upper Castes, Of the Upper Castes, For the Uppers Castes – Dangerous & Deadly for Mankind. It ensured India remain a Corrupt and Undeveloped Nation.
Abolish it. Fast.
Vaghela Ji, don’t divide the country. Only weak people talk like that. Mr K G Balakrishan was CJI, do you remember ? And how many persons from various castes are running the country ? First study then come to this forum.
(1) A rare exception does not make a rule. Out of hundreds of Judges if one become CJI mean nothing. (2) Entire Administration – Bureaucracy, Politics, Corporates, Judiciary – runs on caste basis with Upper Castes dominating every field in India. (3) Please let me have your contact details to enable me to provide countless documentary evidences in support of what I said and I still say. I am on Social Media Twitter, my contact no is 9427608632 and my Email is vaghelabdATyahooDOTcom.
All the people who are debating against the scrapping of collegium system for appointment of Judges of Apex Court as well as HCs must be aware that the stage to debate such an issue is long passed and now the bill is already passed by one House of Legislature and it is a matter of time it will become Law. In fact they should eagerly await the new Law as they say the change is the only constant in life. When they come across some bad thing about the new Law then only they should write about old systems including system prevalent prior to the stage when the Hon’ble Judiciary usurped the powers of executive in the matters of appointment of Judges. No country in the world which follows democracy have a system of Judges appointing Judges. So let us await the new System and try to have a balance in favour of executive, which is at least answerable to the people of our great country and propagate an opaque system where in even the RTI applications questioning about the process followed in appointment of Judges is frowned upon. I may also mention herewith that a common man cannot even dare to ask any question to the higher judiciary out of the fear of being hauled up for contempt or under some inherent powers, which may not be written anywhere and hence the common man have no knowledge of.
The interference or inclusion of executive in the selection process is not at all warranted. We cannot copy US or other Countries in this aspect. We have seen in how many Scams the Suporeme Court only could find the corrective action and in how many cases the Executive could not. There are Crores of rupees due by MPs towards Rent, Telephone etc which the Govt could not collect. Trying to pack the judiciary with committed judges is the most erroneous step. Even in US one President had lamented that selection of a particular Judge to US Supreme Court was his greatest folly in his life. What action was taken by our Govt in the case of former CJI against whom and his relatives serious allegations have been made. Of course such judges have somehow creeped in. But that is not the reason to throw the Collegium ino the BIN. Now for the Public Supreme Court is the only resort for many ills of the Executive action. That Institution should not be DAMAGED.
We have developed many good institutions which includes our Supreme Court including the present system of appointment of judges. Definitely it is not free from aberrations and if some wrong doing is established punish the wrong doer harshly. Probably we can have more honesty from our judges if they are barred from acting as private arbitrators and to achieve this let our judges be paid full salary for about two years and monitor them impartially above partisan politics. To put it briefly we have more perfects institutions; but men who man them are imperfect. Let us for create more perfect men to man our institutions.
there is no iota of doubt in my mind that Supreme Court of India’s collegium system must be retained. otherwise how would you deal with high profile cases such as sahara and many more in the pipeline. this subject require some more public debate before formalising the new bill.
Its like choking the august institution of judiciary and denial of justice simultaneously. Mr Markandey Katju has already vomited undigestable contents experienced while in system. By lowering the quality of liberty, the government is trying to grind its own axe.