CHENNAI: In a stinging attack on the Collegium system for appointment and transfer of judges, a former judge of the Supreme Court has described it as having degenerated into a “give and take” policy and thereby seriously in risk of compromising the quality of people presiding over the High Courts and the Supreme Court.
Justice A K Patnaik, who stepped down as a Supreme Court judge a couple of years ago after serving as a judge in various capacities for two decades, had this to say: “Many competent persons have often been ignored and those who were close to members of the SC Collegium were chosen because there was no objective assessment whatsoever while making the selections.”
Justice Patnaik, who himself served as a member of the Collegium under two different Chief Justices, said selection of judges is too important to be left to the frailities of one human being (read Chief Justice). The SC Collegium comprises the Chief Justice and four senior judges. Justice Patnaik first served as a judge of the Orissa High Court before being elevated as Chief Justice of Chhattisgarh High Court and later transferred as Chief Justice of the Madhya Pradesh High Court. Many in the judiciary believe that Patnaik himself was a victim of the Collegium system as he was overlooked because he “did not bow to the wishes of those at the top”. He was elevated to the Supreme Court after serving as the High Court Chief Justice for close to five years, perhaps a record in itself. Not keen to rake up the past, Justice Patnaik said, “I was overlooked because I sternly stood by my views.” By the time he finally made it to the apex court, he lost the opportunity of becoming the Chief Justice of India. Interestingly, one of the suggestions made by the government of India in the Memorandum of Procedure [MoP] for appointment of judges was that if the senior-most Chief justice of a High Court is not being considered, the reasons for the rejection should be recorded. Speaking to TNIE in the light of the controversy triggered by senior Supreme Court judge Justice J Chelameshwar’s refusal to attend Collegium meetings because they are not transparent, Justice Patnaik said the 1994 judgement in the Second Judges Case gave independence to the judiciary but those who have been members of collegiums at the High Court and Supreme Court levels have not proved themselves to be “detached.”
By striking down the National Judicial Appointment Commission (NJAC) Act in October last year, the Supreme Court lost a rare opportunity to constitutionally regulate the appointment and transfer of judges.
Not one who is willing to allow the executive to have control over the judiciary, Justice Patnaik observed that all that the court could have done was to strike down the proposal of having “two eminent persons” in the composition of the panel for selection of judges as this could have given scope for the government to exercise control. Of the remaining four members, three would be from the Supreme Court and the other would be the Union Law Minister, whose involvement would be justifiable as he represents the Union Council of Ministers.
Strongly defending the stance taken by Justice Chelameshwar, the former judge also agreed with the view expressed by another retired judge, K T Thomas, that the matter should be referred to a larger bench for a review. “He does not know what happens inside,” Justice Patnaik said, when asked for his reaction to the suggestion of jurist Fali Nariman that Justice Chelameshwar should have resigned before voicing his views. “No judge, unless he is a part of the collegiums and no lawyer, leave alone others, would know what happens in the meetings and I can surely say that it is not in the interests of the judiciary.”
According to Justice Patnaik, the Collegium system has diminished the autonomy of High Court judges as none who aspires to get elevated to the highest court can afford to ignore the “command from the top.”
“What kind of a justice can a judge deliver in such circumstances,” Justice Patnaik asked.