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Former judges, lawyers say collegium system needs to change but NJAC is not the answer

NJAC was enacted in 2014 to replace the collegium system of judicial appointments. Struck down by Supreme Court in 2015, it was discussed in Parliament again last week.

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New Delhi: In a Parliament debate last week over existing vacancies in the judiciary and the collegium for judicial appointments, members of the House cutting across party lines urged the government to revisit the system.

In response, Union Law Minister Kiren Rijiju said there was a growing voice in favour of the National Judicial Appointments Commission (NJAC) Act, which had been enacted in 2014 to replace the collegium system, but was struck down by the Supreme Court the following year.

According to Rijiju, the government had received representations from many retired judges and the Supreme Court Bar Association in support of the NJAC.

“It (collegium system) does not even justify the slightest intent with which the provision was made in the Constitution,” the minister said in response to suggestions made by House members that the NJAC should be brought back, with changes, if any.

Rijiju said he was not making any commitment, as the issue related to appointments “is very sensitive”, but since he had received comments on the collegium system, it was his duty to inform the House.

The NJAC had devised a new procedure to give the central government a say in the appointment as well as transfer of judges. While in the collegium system, the Centre has no say, except for providing IB inputs, under the NJAC commission the panel in-charge of appointments would have comprised government nominees as members, in addition to judicial representatives.

However, in October 2015, a Constitution bench of the Supreme Court struck down the Act by 4:1 majority, holding it as unconstitutional and saying the law infringed upon the independence of the judiciary.

The Parliament discussion last week, however, once again revived the debate over the efficacy of the collegium system.

Speaking to ThePrint, legal experts and former judges of the Supreme Court agreed that it is time a new appointment system is evolved to bring “much-needed” transparency in the process, particularly in the wake of recent multiple transfers of High Court judges.

But experts are divided in their opinion on the NJAC as an alternative and suggested that those closely associated with the judiciary or who have been a part of the institution should be consulted before any new mechanism is worked out.

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‘System needs to be reviewed’

Former Supreme Court judge Justice J. Chelameswar, who had given a dissenting opinion in the 2015 verdict striking down NJAC, maintained his stand to do away with the collegium system while talking to ThePrint Friday.

In a strongly-worded dissent, Justice Chelameswar had then said that to entirely eliminate the government in the selection process of judges would be against democratic principles.

He had advocated for transparency in the selection of judges, saying it is a vital factor in governance and is an aspect of rationality.

“My opinion in the NJAC verdict was on the constitutional validity of NJAC and was not a value judgement on whether it is the best system,” Justice Chelameswar told ThePrint. The judge added that his views on the collegium system have not changed.

“The system needs to be reviewed. This is what I had then said and I maintain it,” he said.

Former SC judge Justice M.B. Lokur, who was Justice Chelameswar’s bench partner in the NJAC case, said an “extensive debate” is needed on the appointment system. Justice Lokur’s had been among the majority verdict that declared the NJAC unconstitutional.

Six years later, Justice Lokur still does not “think” his reasoning to invalidate the NJAC had been wrong. “It was a correct verdict. The NJAC was affecting the independence of the judiciary,” he said.

However, Justice Lokur, said the manner in which appointments and transfers of high court judges takes place necessitates a “wider discussion”, leading to some changes in the appointment system.

According to him, the deliberations should not happen inside Parliament, but outside, involving former judges and eminent jurists.

“The appointment powers of the Chief Justice of India as the head of the collegium need to be delineated and regulated. Similarly, the executive’s powers also need to be curtailed and regulated,” he said.

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‘SC can’t be ultimate arbiter’

Another retired SC judge, Justice Deepak Gupta, agreed that the judicial appointment system requires more transparency. “The collegium system has not worked very well,” he told ThePrint.

According to Justice Gupta, the government should not get a complete say in the selection process as was set out in the NJAC. But the body entrusted with the selection of the right candidates could include retired senior civil servants such as the cabinet secretary or the chief vigilance commissioner (CVC), he said.

“These eminent persons should be those who have been a part of public life and have no axe to grind,” the retired judge added.

The 2015 NJAC verdict, said Gupta, left many questions unanswered. He noted that even the top court had not yet followed the directions mentioned in that verdict. One such direction required the apex court to constitute a secretariat to assist the collegium in the appointment mechanism. The secretariat is yet to be formed, said Gupta.

“The new system should give out everything in black and white, including the timelines for selection and final notification of the names,” the former judge added.

Supreme Court lawyer Vijay Hansaria, a senior advocate, said the appointment system under the Constitution is “purely an executive” role, which the judges have taken over.

“The main function of judges is to decide cases and adjudicate disputes. Unfortunately, due to the collegium system, they are occupied with a function that is not judicial in nature,” he said.

Hansaria, too, felt that there should be a body, with representation from all organs of the State to select judges. “Let there be a debate on the composition of this body so that there is no overreach by any particular organ of the State,” Hansaria said.

Echoing Justice Chelameswar’s view in the NJAC case, the lawyer added: “The executive has a right to have a say in the running of the country, they cannot be kept out of this (appointment of judges) process. As it is, even now, the government agrees to 90 per cent names cleared by the collegium. Divergent views emerge only in 10 per cent cases,” he said.

Expressing further concern about the collegium system, Hansaria said the collegium has been bestowed with too much power and, with a change in its constitution, the views of the collegium also change.

Senior advocate Ajit Kumar Sinha, who had stepped down as a judge of the Patna High Court even before the completion of his tenure, said the NJAC was a workable solution.

“The formation of that body allowed broad-based participation of every stakeholder. A final decision would have been by way of majority. So, it was incorrect to hold that the NJAC gave super powers to the government,” Sinha said.

Claiming that the collegium system needs to go for “many reasons”, Sinha said the “Supreme Court cannot be an ultimate arbiter in this matter”. “Appointment of judges is for public purposes and the government should have a say in it,” he added.

(Edited by Poulomi Banerjee)

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