THE SUPREME COURT AND COLLEGIUM

Once again the collegium of the Supreme Court of India is in the news, and once again for the wrong reasons.
This time, it is because of the difficulty that its five judges have in getting together for one meeting.
The Chief Justice of India, Justice U.U. Lalit, assumed office on August 27, 2022. He has a short tenure and demits office on November 8, 2022.
Nevertheless, he tries to set a scorching pace.
He constitutes as many as five Constitution Benches to hear extremely important matters which his predecessors put on the back burner.
The CJI also takes it upon himself to fill six vacancies in the apex court.
He sets in motion the procedure contemplated for the collegium of the Supreme Court which is enshrined in the Memorandum of Procedure of 1999.

Relevant questions

If this was any other body conducting business for selecting the highest officers for the organisation, those in charge would face both questions and flak.
The problem, as has been the problem with the collegium, is that there is nobody in it to ask these questions.
Time and again, it has been widely commented that this is an extra-constitutional or non-constitutional body brought in force by judgments of the Supreme Court virtually wresting the power of appointment of judges.
The Constitution of India gave the last word to the President of India but mandated consultation with the Court.
These judgments give the last word to the Court mandating consultation with the government.
Not only that, what makes the problem even worse is that there is no seat in the collegium for any non judge — neither from the executive, the Bar or anywhere else.
In other words, there is no one to offer suggestions or raise questions or even to observe what is going on.

unanimity

In 2014, Parliament by unanimity — mark the word unanimity — backed by State legislatures enacted the National Judicial Appointments Commission (NJAC);
it comprised three judges, the Law Minister and two eminent persons to handle the task of appointing judges.
By a 4:1 majority, the Supreme Court struck that down, setting at naught the entire legislative will of the country which was trying to reverse a constitutional coup.
If the Court was concerned about being overruled in appointments, it could have just tinkered with and read down the Act, deleted the second eminent person and thus secured a situation where the judges were in the majority.
This would have secured judicial primacy, provided for some executive involvement as well as had one person representing a larger public constituency.
The point is that this will at least provide a place at the table for the question why and the question why not to be asked.
There can be accountability and perceived performance only when these questions can be asked and have to be answered. Otherwise there will be insularity and opacity.

On judicial appointments

In recent times, the Government seems to have given up on pursuing the commission for judicial appointments.
One wonders why. Perhaps the answer partly lies in successive collegiums not putting forth names anathema to the Government, notably that of Justice AkilKureshi (he retired in March as the Chief Justice of the Rajasthan High Court).
This is hardly a satisfactory solution. It is time to revisit this question and secure a better, broad-based and transparent method of appointing senior judges to the High Courts and the Supreme Court.
While doing so, we may also ask why there have been no appointments from the category of distinguished jurists which Article 124 of the Constitution contemplates.
Appointments to the top court seem to be the preserve of judges from the High Courts with a handful of appointments from the Bar.

SOURCE: THE HINDU, THE ECONOMIC TIMES, PIB

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