3,November,2015: The Supreme Court said today that it will this week begin discussions on reforms in the collegium system of judges' appointments, in the four areas of transparency, candidates' eligibility, a complaints mechanism against candidates and the setting up of a permanent secretariat for the collegium.
Eminent advocates will on Thursday begin offering the top court suggestions for reforms in these areas.
"We must decide the reforms issue soon," because the entire appointment of judges is held up across the country, said a bench headed by Justice J S Khehar.
The Centre has said in the past that transparency was the key reform to the collegium that the SC must address. Attorney General Mukul Rohatgi said the collegium must record reasons for the selection or rejection of candidates for judgeship.
Attorney General Mukul Rohatgi, Solicitor General Ranjit Kumar, senior lawyer Fali S Nariman , senior lawyers Rajeev Dhawan, Anil Divan, Arvind Datar, K K Venugopal and Gopal Subramaniam were present when, the constitution bench headed by Justice J S Khehar asked them to furnish further suggestions on four counts—how to improve transparency in the process of judges selection, what changes to make to the eligibility criteria, on formation of an office of the collegiums in the supreme court which will be called the secretariat and on how to deal with complaints.
Justice Khehar said ,“We are flooded with emails giving suggestions..the diversity is tremendous, unimaginable. We cannot ourselves say we accept this suggestion or that other. Instead it would be better if someone from both sides (petitioners who challenged the NJAC and the government) compile these suggestions for us,” …”tentatively it is not going to be a wholesale change but only within the parameters”.
Bench designated Senior advocate Arvind Dattu and Additional Solicitor General Pinky Anand to compile the suggestions and submit the compilation by Thursday. Some Lawyers protested that the court is curtailing an opportunity to join in the consultative process.
They said it should comprise of qualified advocates and will be provided all the necessary facilities and infrastructure including computers. They said the secretariat will be responsible for maintaining a database of judgments and selecting from these the three best judgments of each prospective appointee
It was suggested that applications should also be invited for appointment as HC judges and names of people who are being considered for appointment as judges should be made public.
The government further adds that the collegium must consult senior members of bar before making the appointments.
All five judges in the constitution bench — Justices JS Khehar, J Chelameswar, AK Goel, Madan B Lokur and Kurian Joseph in separate judgments had agreed that the collegium system needed to be more transparent and required improvements.Terming NJAC an affront on independence of judiciary, violative of basic structure of the Constitution, in breach of principle of separation of powers and not guaranteeing primacy to the judiciary in appointment of judges, they said even the existing collegium system had faults.
Wrote Justice Kurian: “the collegium system lacks transparency, accountability and objectivity.
The trust deficit has affected the credibility of the collegium system, as sometimes observed by the civic society”.
As Justice Goel said “the executive was at liberty to give suggestions prior to initiation of proposal and to give feedback on character and antecedents of the candidates proposed and object to the appointment”, Justice Kurian echoed the view and said “the active silence of the Executive in not preventing such unworthy appointments was actually one of the major problems.
The Second and Third Judges Case (which gave birth to collegium system) had provided effective tools in the hands of the Executive to prevent such aberrations”.
Justice Lokur was of the view that the collegium system needed “fine tuning”.
The government had argued that there was lack of transparency in the old system and many undeserving, inefficient and corrupt judges made their way up.
The SC, after its October 16 judgment striking down the National Judicial Appointments Commission Act, had asked for suggestions to improve the system of appointing judges to the Supreme Court and the High Courts. It has been, since then, flooded with suggestions from different stakeholders.
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