Collegium system is faulty

Interview of the Week

Justice (Retd) Makani Narayana Rao’s illustrious career as lecturer, lawyer, District and Sessions Judge and Chief Justice of Himachal Pradesh spanned 37 eventful years. He hails from Nellore. He is a multi-faceted personality with varied experiences. After his retirement in April 1998, he started his practice in the Supreme Court. In June 2010, he was appointed as the Chairman of National Commission for Backward Classes. He retired from the position in September 2013.

Rao had the rare honor of being sent on deputation to the Institution of Legal Studies, London, when he was serving as a district and sessions judge. An able administrator and legislative draftsman in the capacity of Andhra Pradesh Law Secretary, Rao drafted the Section 29A of the Hindu Succession Act . He was also the architect of many laws such as abolition of capitation fees etc. A voracious reader who has penned several books, he is also a very good orator. Justice M N Rao shares his thoughts on issues like scrapping of collegium system, accountability among judges and reservations for minorities etc with Lata Jain

Was there a need to scrap the collegium system?
Dr B R Ambedkar warned against the system of judges selecting judges by saying, "to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the government of the day.” I have no doubt that the Chief Justice is a very eminent person but, after all, he also has feelings, sentiments and prejudices as common people do. We need to discuss openly and freely the best method of appointing the best judges, for nothing less than the precious constitutional rights of our countrymen are at stake. While the appointment procedure does need the breathing space to function freely, it cannot merely be reduced to the plea of primacy of the Chief Justice of India. In the name of independence of judiciary, the expression ‘consultation’ was read as ‘concurrence’ in Articles 124 and 217 of the Constitution.

What do Articles 124 and 217 say?
Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years, provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Article 217 says, “Every judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court….”.

How does the selection happen in other countries?
Under the American Constitution, the US President nominates the judges, but appoints them only on the advice and consent of the Senate. There is a detailed procedure for ensuring transparency prior to nomination as well as during its consideration by the Senate. In the United States, the President’s nominees go through confirmation hearings in the Senate and are subjected to public scrutiny in relation to their professional lives and political views. Both processes have led to more transparency in judicial appointments, and have widened the pool of eligible candidates for appointment to these high offices. In the United Kingdom, judicial commissions invite an “expression of interest” from the members of the Bar through public advertisements for appointment as judges in the highest judiciary, as also for appointment as Queen’s Counsels, equivalent to our senior advocates.

What were the shortcomings in the collegium?
Evidence from the past few decades suggests that judges are likely to expand the scope of judicial review in developing the concept of democracy and good governance. Thus legitimacy, transparency and accountability of the judiciary, and its relationship with other branches of government, become even more significant. The method of appointment of judges, then, is important. One consequence of the current system of self-nomination by judges is that we have a predominantly male judiciary. The system has largely excluded women. Also, the current method rewards individuals with kinship or other relations to the members of the judiciary. Recent revelations in the Punjab and Haryana High Courts have shown that the sons of sitting judges have been appointed to the post of Additional Advocate General with little experience at the Bar. Sons of sitting judges practise in the same court, except in the court of their fathers. Law firms in which children of judges are employed represent clients before the same judge. The current system of judicial appointment is faulty; it is faulty because it is opaque. The opacity of this system attracts charges of nepotism and lack of transparency. Collegium is a closed-door affair without a formal and transparent system.

What is the process of selecting judges for High Court and Supreme Court?
For High Court judges, a candidate must have had at least 10 years’ legal practice and can be a lawyer or a subordinate judge. The High Court Chief Justice picks a panel of prospective candidates after informal consultations with two other senior-most judges of the High Court — no advertisements are put out or applications sought.

After examining the would-be candidates’ competence and integrity and state intelligence inputs about them, the Chief Justice forwards the final list to the CJI. A collegium of the CJI and the two other senior-most apex court judges makes the final selection, often consulting any other apex court judge who has worked in that particular High Court. The collegium then forwards the names to the President through the Union government.

As far as Supreme Court goes, the Chief Justice or the senior-most presiding judges of the High Courts are eligible for appointment, and so are eminent lawyers with over 10 years’ experience. A collegium of the CJI and the four other senior-most apex court judges makes the selections.

Who challenged the collegium system?
The collegium system, which is followed in the appointment of judges to the Supreme Court and the High Courts, was challenged in the Supreme Court in May 2013. The petitioner, Rajasthan-based Suraz India Trust, wanted the court to declare the system ultra vires and unconstitutional because the Constitution does not mention it anywhere and it has been brought into existence through the judgments of the Supreme Court. In a decision rendered by a seven-judge Constitution Bench in S P Gupta Vs. Union of India (AIR 1982 SC 149), the majority held that consultation did not mean concurrence, and ruled further that the concept of primacy of the Chief Justice of India was not really to be found in the Constitution.

Does corruption by judges defame judiciary?
By concealing corruption by judges, the judiciary is on the side of fault. It is unfortunate that no judge has so far been impeached. There have to be accountability and transparency and exposing corruption will only gain the trust of the public and maintain the social fabric of the society.

During NTR’s regime you were the Law Secretary and you proposed equal rights in property to a Hindu daughter. Did you face any opposition?
No. In fact this was drafted by me in 48 hours and Andhra Pradesh was the first state to introduce this Bill and in course of time the whole of India followed the same draft.

You were the chairperson of the National Backward Classes Commission. What is your opinion on reservations?
Before the partition of the country and the framing of the Constitution, there were proportionate representations to the religious minorities. An advisory committee under the chairmanship of Sardar Vallabhai Patel was set up.

When the report was put up, some of the Muslim representatives changed their opinion; they put forward the plea that all reservations must disappear and that it was in the interests of the minorities themselves that such reservations must go.