COIMBATORE:There are divergent views of retired judges on the Supreme Court’s decision to invite public opinion to improve the collegium system of appointing judges.
Not just that, there seems to be no consensus among the judges themselves, who while reluctant to support the formation of a National Judicial Appointments Commission (NJAC), also want the higher judiciary to be held accountable, and to have a more fair system of appointing judges.
Speaking to Express, Justice K Chandru, a retired judge of the Madras High Court, said, "The decision of SC to invite public view on the subject is a joke, as the Supreme Court bench had itself ruled that the recommendations from Parliamentarians elected by the public were 'unconstitutional'.”
“When the Court says that the Bill by people’s representatives themselves is unlawful, how can recommendations by the people have any effect?,” he said.
He also called for a referendum where the public can decide whether they would prefer the collegium system or the NJAC.
“They (the Supreme Court judges) have decided that the NJAC will not work. However, it is only a hypothesis by the court,” he added.
However, another retired Sessions Court judge differed with the views of Justice Chandru. The judge said that the Apex Court had struck down the Act as “it violated the Constitution and infringed on the independence of the judiciary.”
“Furthermore, in order to have the public consensus on the matter, the Supreme Court had in addition, asked the people to give their opinion. Hence, it would take on board suggestions that fits within the Constitutional framework,” he said.
Other retired judges said that the judiciary needed to have a more transparent system of functioning and appointing judges to the higher courts, while also being independent from political influences.
They said that the judges could consider getting recommendations from senior lawyers and apolitical bodies, before deciding on whether to promote a judge to the higher wrung of the judiciary.
P Nandakumar, president, Coimbatore Bar Association, said that the decision of SC to strike down the NJAC was correct. He also commended the court for its decision to seek the recommendations of the public, as this would help to correct an imperfect system. “The public wants the independence of the judiciary, and also ensure that it is fair and free,” he said.
‘Transparency, Eligibility Vital for Appointments’
The report filed by Additional Solicitor General Pinky Anand, and senior advocate Arvind P Datar, on suggestions made by the public to improve the collegium system makes for interesting reading.
In their report, they stated that they received 60 recommendations in the form of e-mails and letters. They classified the suggestions under five categories - Transparency, Eligibility, Secretariat, Complaints and Miscellaneous.
In the general suggestions of the 'Transparency' category, members of the public have called for a well-defined criteria to be established for appointments made in the Supreme Court and High Court, which should also be made available on the websites.
Suggestions also include making it mandatory for candidates to mention the names of relatives who are judges (if any) in their bio-data.
Another controversial suggestion is that collegium judges should be immune to any 'challenge in the courts', as their work is to discharge duty of the "high constitutional and sovereign interests."
Suggestions in this section also include getting a report from the Intelligence Bureau, only after which the names of candidates would be sent to the Supreme Court for appointments to higher courts. Some had also suggested that candidates should disclose their membership (if any) with a political party.
In the 'Eligibility' category, there were suggestions that there must be representations for minorities and backward classes and also a "points grading system," to evaluate the merits of independent candidates. Another interesting suggestion is for an increase in the number of female judges.
"Complaints" against candidates can also be made, which can be referred to a panel of judges. But the candidate must be given a chance to rebut allegations against them is another suggestion.
In the 'Miscellaneous' section, there have been recommendations that the transfer of judges must record brief reasons for the transfer, and also that strict guidelines should be followed for appointments, as this had led to a large number of vacancies in the judiciary.