Dissent over the appointment of judges through the collegium system is brewing within the judiciary. There was evidence of it on Tuesday when a judge sitting in an apex bench openly spoke about how certain castes and communities have been excluded from the ambit of selection for decades together.
The Bench of Justices BS Chauhan, J Chelameswar and MY Eqbal was hearing a petition by the Centre where the issue of 12 names recommended by Madras High Court was called in question by a senior advocate of the Madras Bar on the ground of caste bias and incompetence.
The bench said, "Is it a mere accident that there is no representation (of certain segments of society) and could the accident continue for 60 yearsIJ It is surely not an accident. And we cannot shut out the debate by saying no one has a justiciable right to be considered for appointment as a judge."
Dealing with the issue in question and dealing with members of the Madras Bar feeling aggrieved over non-selection of eligible persons from the Bar, the Bench said, “We are on the multi-dimensional impact. Certain segments of the society never got representation in the Bench and it is also a fact that there are competent advocates in these segments.”
Incidentally, the Supreme Court collegium had written to the Union law Ministry withdrawing the 12 names without giving reasons. When the bench questioned how the list came to be withdrawn, Attorney General GE Vahanvati, who appeared for Madras HC, pointed out that this was so due to the elevation of Madras HC Chief Justice to Supreme Court. "Is this a consideration," the bench wondered.
Appearing for Supreme Court Registry, ASG lN Rao, argued that the proposition of the Bench was also laced with dangerous consequences as the Constitution does not provide for selection based on any caste or community. But the Bench said that its concern was that in the event there is "widespread unrest" over some recommendations, there must be a forum to address those grievances. Vahanvati pointed out that such a forum of redressal was available by way of representation to CJI or law Ministry.