Procedure for selection of judges should not compromise the independence of judiciary

By AK Patnaik, Former Judge of Supreme Court

The newspapers have reported that eminent jurists, including former Chief Justices of India and lawyers, have in a meeting with the Union Law Minister on July 28 expressed the view that the collegium system of appointment of judges to the higher judiciary has failed. The reasons for this view have, however, not been detailed in the reports. I agree with jurists, and I would like to give reasons for this view for the benefit of readers who may not have knowledge about the collegium system of appointment.

The collegium system was put in place by a judgment of the SC in the SCAdvocates on Records Vs. Union of India (1993) 4 SCC 441. In this judgment, the SC interpreted Article 124(2) and Article 217(1) of the Constitution, which provides for appointment of judges of the SC and the HC, respectively after consultation with the Chief Justice of India (CJI) and others. The SC held that no appointment can be made unless it is in conformity with the final opinion of the CJI. On reading of the majority judgment authored by JS Verma, I find that for coming to this conclusion he has given two main reasons: First, primacy of the opinion of the CJI will ensure a judiciary independent from the executive and eliminate political influences, and second, the collegium of the CJI and other judges are best equipped to know and assess the work of the candidate and his suitability for appointment as a judge to the higher judiciary.

After this judgement, appointments of judges have been made in accordance with this collegium system. Yet many advocates with merit and integrity have been overlooked and those with lesser merit and doubtful integrity have been appointed as Judges of HCs. Similarly, judges and Chief Justices of the HCs whose judgments revealed their merit and against whom there were hardly any complaint regarding their integrity were either not selected or were selected for appointment to the SC when the composition of the collegium was such as to make their recommendation possible. Perhaps, these facts are to the knowledge of the jurists who participated the July 28 meeting and took the view that the collegium system has failed.

The collegium, however, has ensured an independent judiciary which only can protect and enforce the constitutional rights of the people against executive excesses and majoritarian legislations. Prior to the judgment in 1993 case, four out of five judges of the SC had held in ADM, Jabalpur Vs. SK Shukla reported that in view of the Presidential Order of 1975, no person had the locus standi to move any petition before HC under Article 226 of the Constitution challenging the legality of his detention on any ground whatsoever. The sole dissenting judge, HR Khanna, on the other hand held, that a person has a locus standi to move the court for enforcing his rights to life and liberty which was part of rule of law and only independent courts can compel the government to conform to rule of law. This one case demonstrates that without an independent judiciary, protection of the constitutional rights of the people is not possible. I do not recollect any case after 1993 in which the majority of judges of a Bench of the SC has failed to protect the right to life and liberty of a person in the way it failed in ADM, Jabalpur Vs. SK Shukla.