SUGGESTIONS OF MULNIVASI SANGH FOR IMPROVEMENT IN “COLLEGIUM SYSTEM” FOR APPOINTMENT OF JUDGES IN SC AND HC.
Suggestions were sought by Ministry of Law and Justice as per Supreme Court Order dated 05.11.2015 through its website. The detailed suggestions of Mulnivasi Sangh as submitted to Supreme Court are given below:
The Hon. Supreme Court
Ministry of Law and Justice, Govt. of India
We thank the Hon. Supreme Court of India for inviting comments public on the improvement of collegium system for the appointment of judges in the High Court and the Supreme Court. This example will be remembered in the history of India because the Hon. Supreme Court has considered the public (The People of India) worthy for their wisdom when three Institute of the constitution viz. Parliament, Political Executive and Judiciary are at the loggerhead in so far as appointment of the judges in the higher judiciary is concerned.
Mulnivasi Sangh is an all India organisation of the people from Backward Class of Citizens (SC/ST/OBC and Minority Community) spread all over the country and represent all its components. Before we place our comments on the issue, we would like to submit that the constitution of India had clearly demarcated the powers and functions of all the three Institutions viz. the Parliament to legislate the laws; the Political Executive to protect the Fundamental Rights & frame the policies for the welfare of the citizens and the Judiciary to interpret the Constitution and other laws. We therefore feel that given such clear demarcation, such an unprecedented situation-current impasse regarding appointment of judges- should not have been arisen.
With this background, given below is our stand on each point pertaining to transparency, eligibility, secretariat and complaints on the subject of appointment of the judges:
Admittedly the collegium system of appointment of judges in the higher judiciary is not transparent as has been felt by the Parliament leading to enactment of present law; the Hon. Supreme Court has also invited comments from public for ensuring the transparency in the appointment through collegiums system and the public has debated this issue through electronic and print media widely and held that there is no transparency in the appointment of judges.
The constitution through Art. 124 has provided power to appoint judges to the President by warrant under his hand and seal after “consultation” with such of the judges of the supreme court and of the high court’s in the States as the President may deem necessary for the purpose.
The Constituent assembly while debating on Art. 103 of the draft Constitution debated the term “Concurrence” (as an alternative to word “consultation) and held that Veto power cannot be given to the Chief Justice of India and retained the term “Consultation” in the Constitution. It clearly means that the term “Consultation” does not mean “Concurrence”.
The Hon. Supreme Court appropriated the power of appointment to itself by interpreting the word “Consultation” as “Concurrence” which is absolutely wrong, as the Constituent Assembly has rejected term “Concurrence” in the debate and consciously refused to give absolute veto power to the Judiciary.
Therefore, our submission is that no doubt the Supreme Court has right to interpret the Constitution, but it is only when there is ambiguity in the terminology used by the Constitution makers.
First of all there is no ambiguity in the word “Consultation”.
However, if the Hon. Supreme Court feels that there is an ambiguity, then the best course of action for it is to consult or refer to the Constituent Assembly debates and understand the intended meaning the Constitution makers had assigned to the term “Consultation”.
If the Constitution makers have not left any ambiguity, then we feel that the Hon. Supreme Court cannot go beyond the meaning given by the constitution makers.
If the Supreme Court goes beyond the limitations drawn by the Constitution, it will amount to creating a “super legislation” which is not permissible under the Constitution.
It also appears collegium system is unique as far as it is practiced only in India for appointing judges by judges. There must be some valid reason why many other countries around the world have not adopted collegium system.
In view of above we reject the Collegium System.
So far as the appointment of Judges by the President of India as per Art. 124 is concerned, we feel that since President is bound by the recommendations of the Political Executive. It is widely apprehended that Political Executive is recommending to the President the names of party workers or their own kith and kin, thus promoting nepotism and disregarding the merit.
Therefore we also reject the system of appointment through Political Executive.
The NJAC is also one sort of the Collegium System wherein three members are from judiciary, one member from political executive and two eminent members from public mostly from the legal fraternity one of which shall be either from the S.C, S.T., O.B.C., Women. Again these two members shall be selected by the Prime Minister, Leader of the opposition and the Chief Justice of India.
As regards appointment through NJAC is concerned we would like to state that NJAC is also one sort of the collegium except that instead of all the members being from the judiciary, the law minister is taken from the political executive and two members from the public. Decision making requires some sort of negotiation and compromise. In this regard we feel that propriety demands that the members from the judiciary and the political executive should not be clubbed together for such sensitive decision making as they are from two different streams of constitutional institutions and their functions are clearly demarcated by the Constitution. Moreover if there is difference of opinion among six members it may be difficult to take the decision. Again since the Chief Justice is heading the NJAC and if final say is given to CJI’s view it would amount to primacy given to the opinion of the Chief Justice and we shall be back to square one.
Hence we oppose both present Collegium System & proposed NJAC process.
We therefore propose that right course of action would be to the invoke Art. 312 of the Constitution and appoint the judges through “All India Judicial Service” which shall give credence to the merit and transparency, as the present system of appointment either by Political Executives or Judiciary are both opaque and sans merit.
The general impression is built in the society by the so called forward classes that the Backward Class of Citizens is not meritorious. This impression must be dispelled. The Backward Class of Citizens has proved time and again that, given an opportunity they are no less than others. The “All India Judicial Service” shall certainly provide them the opportunity to prove their merit.
We are of the view that the Art. 124 of the Constitution provide the procedural requirement for issuing warrant of appointment under the hand and seal of the President of India. Of course this is done after consultation with the judges of the Supreme Court and High Courts but it is not independent of the Fundamental Rights provided in Part III of the Constitution. We therefore feel that Art.124 should be read with Art. 16(1) of the Constitution and provide the Backward Classes of Citizens the “equality of opportunity” in the judicial appointments in the High Courts and the Supreme Court. We are sure that backward class of citizens shall not lag behind to prove their merit.
In the event the appointments are not made through Art.124 r/w Art.16 (1), Backward Classes of Citizens still should not be denied representation in the higher judiciary as it is implied under Art. 124 r/w Art.16 (4) of the constitution.
If the claim of the Backward Class of Citizens is disregarded for the appointment in the higher judiciary, it will tantamount to denial of their solemn resolution which they have resolved for “equality of opportunity” for themselves and for their co-citizens at the time of framing the Constitution of India.
All the Advocates of the High Court who have completed 10 years of practice or Judges in the Lower court/District Court/Session Court, who have completed 10 years of service, should be made eligible to apply for the post of High Court Judges.
Like UPSC there should be UJSC (Union Judicial Services Commission) independent from Judiciary as well as Political Executive. UJSC should advertise the vacant posts of High court and Supreme Court Judges. The eligible candidate should apply and appear for the written examination. They should be interviewed by the Board consisting of Chief Justice and eminent scholars from legal fraternity including those from Backward Class of Citizens in proportion to their population.
In our opinion, this will be the best appointment system which will eliminate the nepotism on the part of Political Executive and opaqueness on the part of Judiciary.
The representation of Backward Classes i.e. SC, ST, OBC and Minorities is very poor in the Higher Judiciary. They have an inner feeling that no justice is being done to them as has been seen from the various judgements delivered so far. The development of such a feeling among large section of the society is neither good for the democracy nor for the society.
People are also worried for disposal of their cases which takes very long time. Justice delayed is justice denied. Therefore the promotion of a Judge should be based on the number of cases finally disposed in terms of quantity and quality. The judgements of all the judges or Judicial Magistrate should be open to public scrutiny. We need to define performance standards for judges. If there are judges above average performance, only such judges should be considered for promotion. Additional weight should be given based on the speedy disposal of pending cases.
We hope that the Hon. Supreme Court shall take the cognizance of the situation while delivering the judgment on the issue.
National General Secretary