The hearing of the “collegium case” before a Supreme Court Constitution bench saw a host of lawyers suggesting qualifications for a candidate to be eligible to be considered for appointment as a judge.
The suggestions compiled and formulated by senior advocate Arvind Datar and additional solicitor general Pinky Anand evinced varied responses from the legal fraternity and the five judges, who wanted all the suggestions to be formulated into a note for the consideration of the court. When the collegium system was evolved under the 1993 and 1998 judgments by a nine-judge bench, it was never contemplated that public opinion should be obtained before a mechanism was put in place. The Centre had adopted a “Memorandum of Procedure” following the two rulings.
Justice Kurian Joseph drew the counsel’s attention to the fact that at least 75 per cent of procedure in the MoP had not been followed by the government. If the new exercise falls within the parameters of the MoP, then the Constitution Bench may not tinker with the system substantially.
There must be well-defined criteria that should be established by the Supreme Court for appointments to the high courts and the apex court. The criteria must refer to age, merit, seniority, integrity, income criteria, academic qualifications, etc., and must be posted on the website of the high courts and Supreme Court and vacancies notified six months in advance. Bio data of candidates chosen for consideration must be posted on the website to enable persons to send in their complaints, if any, for the consideration of an appraisal committee. The HC collegium must conduct an informal interview of the candidates before finalising the names. There must be 50 per cent quota from OBC and SC/ST candidates for high court judges.
Mr Nariman cautioned that too much transparency could be counter-productive and hamper effective decision-making. Moreover, the information obtained may not be of use for the appropriate purpose. While there must be maximum transparency at the selection stage, there must be confidentiality during the consultative process by the collegium, which should be immune from any kind of challenge in the courts.
A panel of eligible candidates must be prepared in advance and appointment may be made through a panel. Before the names are finalised, there should be informal consultations between the chief minister of the state concerned to avoid delay in clearance of files. Reports from the Intelligence Bureau, currently obtained after the candidate is selected, must be obtained before the name is sent to the collegium in the high court and Supreme Court. Apart from candidates being recommended by the high court collegium, it is suggested that applications should be invited from interested persons to become a judge. The number of judgments of a judge can also be a criterion for elevation.
For the Supreme Court elevation of only the Chief Justice of a high court is considered at present. It should be modified and candidates with merit can also be considered for being appointed as apex court judges. A proper secretariat must be established to collect and store data of candidates.
Senior advocate Ram Jethmalani took serious exception to the remarks of finance minister Arun Jaitley who described the October 16 judgment quashing the NJAC law as the “tyranny of the unelected”. The collegium must give reasons why certain candidates were considered or not considered in preference to others.
Senior advocate Gopal Subramanium wanted discussions within the collegium to be confidential. There must be an affirmation to this effect in writing from each member of the collegium. No member of the political executive (including a minister who may be a lawyer) must directly or indirectly seek to influence either the CJI or other members of the collegium.
