Bowing to pressure to reform the collegium system of judges-appointing-judges, the Supreme Court on Tuesday agreed to fix issues of transparency and the eligibility criteria for selecting judges, besides introducing a full-time Secretariat to assist the collegium and a mechanism to deal with complaints against candidates.
The four issues were culled out by the five-judge Constitution Bench after hearing “diverse” suggestions it received via mails and by way of written submissions presented by the Centre, States and other senior lawyers who participated in the discussion to reform the collegium on Tuesday.
The Bench comprising Justices JS Khehar, J Chelameswar, Madan B lokur, Kurian Joseph and Adarsh Goel, which struck down the National Judicial Appointments Commission (NJAC) as unconstitutional by a 4:1 verdict, was of the unanimous view that any reform must be immediate to expedite the stalled process of appointment.
The Bench appointed senior advocate Arvind Datar for the petitioners and Additional Solicitor General (ASG) Pinky Anand from the Government’s side to compile suggestions from all quarters under the above four heads of issues and present it to the court on Thursday.
The discussion on reforms was centered on transparency, the extent of limiting information in public domain and to extend the consultation process by seeking assistance of non-judicial members, as is the practice under the collegium system currently.
For the Centre, Attorney-General Mukul Rohatgi said that judges appointed to High Courts from the Bar must follow prescribed selection criteria to be made available on the website of the particular HC. The court had queries whether uniform criteria can be applied or the same be left for HCs to determine, based on the earning capacity of lawyers in the respective Bar Associations. The Attorney-General conveyed that a uniform criterion would not be practical. For outstanding merit, he suggested departure from age or seniority criteria.
Rohatgi favoured having a full-time Secretariat where nominations could be invited from eligible people who meet the criteria. Besides, it may even announce expected vacancies and even act as a record keeper for future purposes.
Noted jurist Fali Nariman, who was instrumental in trumping the NJAC, felt that the collegium lacked “receptivity”. Speaking out of his own experience during the Justice Dinakaran case when eminent persons from Madras HC Bar Association failed to get a meeting with any of the collegium judges, Nariman said: “It is a tell-tale instance to show that you need to listen to everybody.”
Senior advocate Rajeev Dhavan said that any reform must keep the nine-judge decision of 1998 (affirming the collegium) as the base.
The Bench told the gathering of lawyers not to expect “wholesale change”. Justice Khehar said: “The changes will be within the parameters laid down. We have received diverse suggestions as everybody is interested in putting the best foot forward. It won’t be that big a change as we have to limit it.” On the need for a Secretariat, even Nariman agreed. “The collegium cannot appoint judges passing off in its spare time from 4 pm to 4.30 pm. It has to be full time. For that you need an office of Judicial Appointments that is permanent instead of getting the Registrar of SC to do an extra job.”
The Bench wondered if this Secretariat could even receive complaints against prospective judges. On this issue, it sought suggestions. Senior women lawyers also represented to the Bench to have gender balance on the Bench. The ratio stands at 62: 611 of women judges and male judges. The Bench said: “We are all looking forward to have women judges” but in the same breath added that the proportion seen at the Bar will get reflected on the Bench.