The only way to make the system better is to pick efficient and intelligent candidates known for impeccable integrity, and courage. Even now, such candidates are available
in plenty...
Collegium system was artificially created in 1993 in gross violation of the Constitutional provisions. The power-center was changed from the Executive to the Judiciary as to appointment of judges. Earlier system had checks and balances. The Supreme Court had no Constitutional Authority to effect an Amendment to the Constitution. Any Amendment to the Constitution to permissible only under Article 368. It is very unfortunate that the Supreme Court brought about an Amendment of the Constitution!
Great Judges like Vivian Bose, Patanjali Sastri, Mahajan, Subba Rao, Hidayatullah, P.N. Bhagwati, Fazl Ali, Y.V. Chandrachud, V.R. Krishna Iyer, D.A. Desai and M.P. Thakkar, were all products of the earlier system when the Executive was appointing judges. The collegium system could not produce a single Subba Rao or a Krishna Iyer. In the earlier system, the judgments except a few executional ones were short and sharp and to the point. Now the judgments are longish and it is difficult to discern the ratio. Most of the longish judgments are cut-and-paste paragraphed and the decision comes in the last para and the reasonings are winding, vague and imprecise. The caliber is at its lowest ebb. Earlier, only one or two volumes of Supreme Court
Reports or Supreme Court Cases were coming out. Now, each year we have 13 to 20 volumes! With all these, the judges themselves do not follow their earlier judgments! Particularly on Mondays and Fridays several judges refuse to look at earlier judgments! Lawyers do not carry any book now-a-days in view of this reluctance to look at them and look into them.
The best among lawyers are not picked up for judgeship in the Collegium System. Only the son, daughter, daughter-in-law, son-in-law, brothers and such close relatives or the ex-juniors of Senior Judges are appointed as judges. Communal considerations rule the roost. Recent untoward happenings in Madras High Court, but for the strict and deft handling of the situation by the present Chief Justice Sanjay Kishan Kaul, show to what extent communal angle works. There were agitations. One High Court judge, induced by communal consideration - right or wrong, came down from his court and started arguing before another Bench! This was unprecedented. The system is so corruptive, nepotistic, communal and rotten.
The Chief Justice of India is asking for creation of more posts. But, out of about 1000 posts at High Court level, always 400 are kept vacant! The collegium system is unable to select candidates for judgeship within reasonable time. To ask for creation of more posts is hence purposeless and meaningless.
This collegium system has given rise to what is known as “uncle-judge syndrome” in all the High Courts. There was an open clash in Gujarat High Court over this problem where mostly children of judges and their close relatives were exploiting the system. There is a reported judgment of the Gujarat High Court on this shameful position in 2006 (2) GCD 1321 (Guj.)
Another big problem is : the judges are reluctant to lay down criteria for appointment as judges. This resulted in a former Chief Justice of India's sister getting appointed as High Court judge with no appearances in courts! The erudite judges who opposed her appointment were banned to come to the Apex Court. Thus, we got many wrong appointments and many a victimization of right candidates!
If proper criteria like appearance in at least 200 cases in the last 10 years as the main counsel, with at least 20 of them reported in leading law-reports, with at least 5 original erudite articles or papers submitted in National and International Seminars etc, are laid down, the system becomes perfect and any system with such objective criteria, whether collegium system or otherwise will produce excellent judges. The collegium judges are afraid of laying down criteria, in view of their vested interests. Even while deciding the validity of collegium system, the Constitution Bench originally opined that the working of the system should be revamped and refined by laying down criteria etc.
Further, we have huge arrears of cases of common man not because of lack of adequate number of judges compared to other countries and nor because of any system. Over 70% of cases are filed or defended by Governments and most of the Govt. cases are filed on flimsy grounds and after huge delay only to save the skin of the beuracracy. If this is cut down, we can cut down even the existing number of judges! In 1980s, the common man was the focus. Now, top-priority is given to political cases and costly corporate cases. All other cases even criminal cases, where the under-trials or the convicts are languishing in jail are relegated and get delayed.
Moreover, when judges like Justice M.N. Venkatachaliah and Justice Ahmadi were Chief Justices of India, in Supreme Court alone, arrears of 1,86,000 cases were brought down to sheer 29000 Appeals by cutting down the court holidays, by working for 30 minutes more everyday and such marginal measures. On the other hand, everytime we increased the number of posts, many judges became lazy and the system slowed down to abysmal levels.
The only way to improve the system is to appoint efficient and intelligent candidates known for their impeccable integrity, and courage. Even now, such candidates are available in plenty. But collegium system very often avoids them. The system being secretive and hush-hush, this has become quite possible. That is the bane. If criteria are laid down as aforesaid, and transparency is ensured, even the collegium system may work wonders!
The author is a senior advocate in the Supreme Court and a Padma Shri awardee
