Millennium Post

Judging the judges

The government, after much dithering, has finally started the process of replacing collegium system of appointing judges. While the present system of choosing judges has faced criticism from various quarters, including judges, on many occasions, the system has been defended by the judiciary.
Also, apart from questions from various quarters on the present collegium system on issues of transparency and corruption, there is another aspect to it - Judiciary versus Executive. Lawmakers have been critical of the system, believing that the Judiciary has taken over the Executive power by judges themselves choosing judges and it was evident in the Rajya Sabha where the bill was moved by union law minister Kapil Sibal.

The bill – Judicial Appointments Commission Bill, 2013 - had been introduced in the Rajya Sabha on 29 August and referred to the Parliamentary Standing Committee on Law, which has now sought the opinion of the general public and stakeholders on the provisions of the bill. Commenting on the move Chief Justice of India P Sathasivam said a few days back that  it was the prerogative of the central government to bring a bill to change it. Earlier, he had defended the current system of choosing judges to the higher judicary.

CJI Sathasivam had said in a seminar on Rule of Law that the government and its agencies have a say in the present collegium system and their views are also taken into consideration for appointment of judges. The CJI said that no name is finalised until it gets clearance from the law minister, the Prime Minister and the President and in the whole mechanism, inputs from Intelligence Bureau, respective high courts and eminent people, are taken into consideration.

His predecessor Justice Altamas Kabir had also defended the collegium system, saying appointments to the higher judiciary are made after intense deliberations. Various CJIs had defended the present collegium system, which came into existence in 1993 by a Supreme Court verdict.

In the past, questions have been raised on the whole process of appointment of judges to the higher judiciary by a collegium. Many judges have come on record to criticise the present system, which they say lacks transparency. Critics of the present system of judges choosing judges say that India is perhaps the only country where judges themselves choose judges and they question the criteria on which certain names are recommended for becoming judges of the higher courts.
There have been many instances that have drawn criticism on the effectiveness of the collegium system, from reportedly ignoring the then Delhi high court chief justice AP Shah for elevation to the apex court, to recommending PD Dinakaran, the then Karnataka high court chief justice, to the Supreme Court. Recently, Gujarat high court chief justice Bhaskar Bhattacharya made allegations against former CJI Altamas Kabir. The allegations once again started debates on the collegium system. In his letter to the  President and Prime Minister, Justice Bhattacharya had accused the then CJI Kabir of scuttling his elevation to the apex court as he had opposed the elevation of Justice Kabir's sister as a Calcutta high court judge. Justice Kabir had denied the allegation.

The collegium system came into existence in 1993 after the Second Judges Case. Under this current system of choosing judges to the Supreme Court and high courts, the Chief Justice of India and four senior most judges of the Supreme Court recommend the names of the judges to the government for appointment to the high courts and the Supreme Court. The government can return the file to the collegium only once for its reconsideration, but cannot refuse recommendation.

The new bill aims to set up a Judicial Appointments Commission to recommend the appointment and transfer of the judges of the Supreme and high courts. The government says that the new bill will make the participants in the selection accountable and introduce transparency in the selection process.

The bill proposes to set up a panel headed by the Chief Justice of India to recommend the appointment and transfer of senior judges. The other members would be two senior most judges of the Supreme Court, the law minister and two eminent persons. The secretary (justice) in the law ministry will be the convener of the panel. The two eminent persons will be selected by a panel headed by the Prime Minister with the CJI, and will have the the leader of opposition in the Lok Sabha as its convener.

When the bill was introduced in the Rajya Sabha by law minister Kapil Sibal, the government and opposition had got united in criticising the functioning of the judiciary. They had said that it is essential to restore the delicate balance of power which has been disturbed. Law minister Kapil Sibal, leader of opposition in the Rajya Sabha Arun Jaitley and several other members were of the view that the present system of appointing judges to Supreme Court and high courts lacked transparency and accountability.

Moving the Constitution (120th Amendment) Bill, 2013, Sibal said the judiciary rewrote the Constitution in 1993 when the collegium system of apponting judges to higher courts was adopted which disturbed the delicate balance between the Judiciary, the Legislature and the Executive.
Underlining that appointment of judges has nothing to do with judicial function, he said, 'The acts of appointments are Executive acts. The Judiciary has taken over Executive power by rewriting Article 124. That balance must be restored. The Executive must have a say in appointment.'
He said, 'It has disturbed the delicate balance of separation of powers. There are very clear divisions of powers among the Executive, Legislature and Judiciary in our Constitution. Judiciary cannot take over the function of the Executive.'

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