New Delhi: A debate on the now-struck down National Judicial Appointments Commission, on Friday, saw participants sharply divided on the collegium system of choosing judges with events its supporters admitting that it has some faults and needed reform.
The participants — Finance Minister Arun Jaitley, who had sharply criticised the recent Supreme Court judgement, former CJI RM Lodha and jurists Soli Sorabjee and Rajeev Dhawan — felt there was need to correct the flaws in the system of judges appointing judges.
The “National Debate” was organised by Times Now news channel in the wake of the Supreme Court last week striking down as unconstitutional the NJAC Act passed by Parliament. It also witnessed repeated sparring between Jaitley and Dhawan.
Justice Lodha conceded that the collegium system of appointing judges to the Supreme Court and High Courts was “opaque and secretive” and said the appointments and the procedure adopted can be put in the public domain or provided under RTI to bring in transparency.
“True, the (collegium) system is opaque and secretive. There are faults… The three faults are lack of transparency, lack of an expert body like a standing committee, to help the collegium and the executive’s indifferent role in the participatory process,” Justice Lodha.
He said that while he respects the executive, he was of the view the judiciary “has to be insulated” from political interference or pressure, and added that interference by executive has to be “nominal”.
Justice Lodha said though the NJAC Act has been set aside, it was still open for the executive and the legislature to devise an alternate method of appointing judges.
Opposing the collegium, Jaitley said it was full of flaws and while the nation needed an independent judiciary, its credibility was more important.
“To be independent is important. To be credible is more important. We all know there was a CBI Director who was independent but not credible,” he said.
Jaitley, himself a noted lawyer, questioned the “exclusivity” enjoyed by the judges who appoint judges without any interference by the executive, saying the collegium system was akin to the Gymkhana Club here where members appoint the future members. He also said that the executive always participated in the process, but its “comments were never taken seriously”.
“It (collegium) is a de-facto system where executive has to follow what the judiciary says. It is a clerical role that the executive has,” the minister said adding that there should be a system of checks and balances.
The minister contended by its judgement the apex court has re-written the constitution as it does “extreme damage” to sovereignty of the Parliament.
Backing the verdict, Dhawan said it does not affect Parliament’s sovereignty as it does not have sovereignty but is supreme in its sphere.
Sorabjee, a former Attorney General, supported the view of Jaitley and said that judges should have an important role in the appointment process “but not an exclusive role”.
“Why do you want to arrogate the power (to appoint judges) to judges only?” Sorabjee said.
He said that Justice Kurien Joseph, who was part of the five judge-bench, which delivered the NJAC verdict, had “castigated” the collegium system by saying that various deserving persons were ignored while several undeserving persons were included.
Sorabjee said that instead of striking down of the NJAC Act, the apex court could have “read into it” that eminent persons, who would be part of the NJAC, should be those who belong to the field of law.
On the objection to the inclusion of the Law Minister in the six-member commission, he said the minister “was not a pariah”.
Dhawan, who had appeared in the apex court during the NJAC hearings, countered the views of Jaitley and Sorabjee and said the problem with the NJAC was that it had some “design faults”, one of them being that it consisted of six members.
Another “fault” that he felt was that the two eminent persons or the law minister and one of the eminent persons could stall the appointment of a judge, apart from also impacting upon the primacy of the judiciary and the Chief Justice of India in appointing judges.
This view also received support of Justice Lodha who also said the NJAC in its current format could stall appointment of an independent judge.
Another threat to independence of judiciary that was feared by Justice Lodha, with which the other three agreed, was the issue of post-retirement jobs that judges get.
“Pre-retirement judgements are influenced by post-retirement benefits,” he said and suggested a method to counter it.
He said that three months prior to retirement, judges can be given the option of choosing between receiving pension or a full salary-job. If they opt for the former, then they would be disqualified from being considered for post-retirement work, he added.
However, if they opt for full salary, then their names would be made part of a panel and when a statutory vacancy comes up, which requires a judge of a high court or the apex court, then someone from these judges can be selected by the executive in consultation with the Chief Justice of India.
On Jaitley’s point that organisations like Comptroller and Auditor General (CAG), Election Commission of India (ECI), and Central Vigilance Commission (CVC) were functioning well enough despite appointments there being made by the government, Justice Lodha and Dhawan said judiciary’s role was much different from that of these statutory bodies.
They said that the judiciary was the institution which was called upon to decide matters like coal block allocation, 2G spectrum allocation, life and liberty issues as well as the constitutionality of certain provisions of the Representation of the People Act and it cannot be compared to other statutory institutions.
“We need a strong and independent judiciary,” they said.