By M.C. Linthoingambee
The Judiciary exists to adjudicate the matters of dispute between any common men thriving towards the principles of justice, equity and good conscience. There is often a long wait in deciding as to who will become the residing ‘lords’ over legal cases. Of late, there has been a vehement discussion into their appointment, efficacy and the functions of the Collegium system used for such appointments bearing contrary viewpoints of the Executive and the Judiciary Branch. Even the Minister of Law and Justice, Kapil Sibal has contended that the appointment of Judges to the Supreme Courts and High Courts. The existing and presiding 40th Chief Justice of India, P Sathasivam has contravened that the present system of working for appointment is still a valid and fully efficient work wherein the last decision is left with the President of India.
Under the present mechanism, the “Collegium” system is the process of initiation of proposal for appointment of a Judge of a High Court rests with the Chief Justice of the concerned High Court and for appointment of a Judge in the Supreme Court, the same rests with the CJI. India has been remarked worldwide as the only existing democracy where the duty of appointment of Judges rest with the Judges. Although this system has been functioning for quite a long period of time, it has been willfully remarked by many judges and recommendations that the earlier systems have bypassed their lifetime, and a new system with more transparency and accountability is to be welcomed with open arms. Late Justice JS Verma, former CJI and author of majority judgment in Second Judges case (1993) as recorded states, “The appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary, both taking part in it.” Whereas Justice VR Krishna Iyer, former Supreme Court Judge and renowned Jurist per quotes that, “The System of character, antecedents, performance or position in the social milieu is hardly considered. The whole process is arbitrary, and naturally the perfunctory selection has come up for criticism.” You see, when it is suddenly announced in the news that a certain so and so person has been named the Chief Justice of India, we just suddenly hear it from the news and in spite of our lack of knowledge of that Judge, we are to accept them as they are since there is no transparency to their selection procedure.
Henceforth, it has been determined in some quarters that if the system continues to persists as they currently exists, we may not be able to look forward as in the existing system, many deserving candidates can be overlooked by the best ones in the field. There are many who feel that the current system lacks credibility because no persons below 50 years of age can take the seats in the Supreme Courts Judges table or the top positions of Judges table in the High Courts. Does age bring certain efficiency to a workplace? On a personal note, I believe so. The young minds are the luminaries that will change the old system or make it innovative in a certain way to form ties of the old system and make it more efficient. But there is indeed an urgent need for a suitable review of the selection methodology of members of the Higher Judiciary as the present system has not been able to, if not failed, live up to the expectations of the civil society in general and the legal fraternity in particular. One of their basic functions is to uphold the principles of Natural Justice and the speedy delivery of such, and we must see to it that it is clearly followed.
It would had been wiser if the Apex Court had itself gone for re-appraisal of its own invented “Collegium” system but unfortunately that has not happened till date, neither administratively nor judicially, although in 2010, a PIL was filed in the Supreme Court seeking review of the same by contending , inter alia , that there is no mention of “Collegium” in our Constitution and the word “consultation” used in Article 124(2) cannot be read as “concurrence”. The ongoing precedents of Judiciary determine that the current system is fine. It is an admission of not wishing to weaken their paramount role in their own judicial appointments. Upholding the fragment of our Constitution where the “Independence of the Judiciary” is considered to be a basic feature, the best possible answer to ascertaining the matter is to introduce a system to bring changes in manner of its transparency without the political elites becoming the centre of the solution.
(M.C. Linthoingambee is an undergraduate pursuing B.Com. LL.B(H). An avid blogger, poet, a seasonal artist and a foodie, she is also a life member to the Indian Society of the Red Cross.)