Records of the Collegium

Well recently four more judges have been inducted into our Apex Court, the most powerful Apex Court world has ever seen !!! The collegium system which has been in existence for more than a decade, a creation of the judicial amendment of the Constitution, has drawn criticism from various corners. I do not wish to go into much complex issues; but i just want to high light one fact.

One of the most interesting fact about the collegium is that it maintains no record of its proceedings. This is something which has been left unquestioned; though there is no point in questioning !! The Apex Court is a Court of record. This is very well known to all of us. The irony is that the collegium maintains no record of its proceedings. Dont the people have a right to know how judges of the Apex Court are appointed or is it only at the pleasure of the collegium?? The answer would definitely be that the people have a right to know. I have mentioned in one of my earlier posts; that in South Africa; even during the selection process, public debates are held on the suggested appointments. In India the common man wonders rather even the legal fraternity wonders how the judges are appointed !!! 

Criterions of the Collegium,if any !!!

Dear friends in my earlier post titled ,"Appointment of Supreme Court Judges ", i posted that there is need for an amendment to the Constitution and the collegium system should be done away with. One interesting thing about the collegium system is that no body knows what are the criterions followed by the collegium in selecting the judges.

Appointment of Judges to the Apex Court of our nation is not a silly matter but one of paramount importance. Why cant this process be made transparent? Let the people also know about whats is happening. Transparency will only bring in credibility. Usually the common man comes to know about the appointments only after the Presidential notification is issued.

The South African Experience

In South Africa, Sections 174 to 178 of the South African Constitution deal with the appointment of judicial officers.Judges may not be members of Parliament, of the government or of political parties. To select judges the Judicial Service Commission first draws up a list of candidates which list must have three or more names than the number of vacancies. The Commission does this after calling for nominations and holding public interviews.Then the President, after consultation with the Chief Justice and the leaders of political parties represented in the National Assembly, chooses the judges from this selection. 

Well in India also the task of appointing of Supreme Court Judges should be left to an independent body which is free from any sort of influence and follows a complete transparent process in all stages of selection of the Judges. Sitting judges of the Apex Court may not be the right persons for the selection of Judges, they are busy with the matters pending in the Court and a sharp scrutiny may not be possible always.

One more thing which needs attention is that there is no proper mechanism to look into corruption charges leveled against the judges.Prashant Bhushan, advocate, Supreme Court, and member, Committee on Judicial Accountability, moots the idea that since there was no credible institution to inquire into charges against judges, a national judicial complaints commission needed to be set up. This body should be independent of both the government and the judiciary. Now, no investigation could be carried out against a sitting judge of a High Court or the Supreme Court without written permission from the Chief Justice of India. 
For the time being, i am stopping here. Will be posting more soon !!!

UK Supreme Court

Her Majesty The Queen of England on 1st October officially opened The Supreme Court of the United Kingdom at an event attended by senior judges from around the world, politicians and others from the UK.

Replacing the Appellate Committee of the House of Lords, the Court’s creation is a landmark moment in constitutional and legal development. The new home of the Supreme Court is the former Middlesex Guildhall, on Parliament Square. It has been painstakingly renovated over the past two years with new life breathed into the building. Many original features have been restored and brought back to full splendour.

Established through the Constitutional Reform Act 2005, the Supreme Court will hear civil appeal cases from England, Wales, Northern Ireland and Scotland, as well as criminal appeal cases from England, Wales and Northern Ireland. It takes over the devolution jurisdiction of the Judicial Committee of the Privy Council (JCPC). The JCPC continues to be the final court of appeal for certain Commonwealth countries and other jurisdictions, such as Crown Dependencies.

The Supreme Court is set to transform the public’s awareness of justice at the highest level. One of the Court’s fundamental aims is to be as transparent as possible in its judgments and proceedings. For the first time at any court in the United Kingdom, proceedings will be routinely filmed and made available to broadcasters. The building is open to the public during working hours and press summaries of judgments will be provided to the media.

Lord Phillips of Worth Matravers, President of the Supreme Court, said: “For the first time, we have a clear separation of powers between the legislature, the judiciary and the executive in the United Kingdom. This is important. It emphasises the independence of the judiciary, clearly separating those who make the law from those who administer it.  As Justices of the Supreme Court we will be more visible to the public than we ever were when sitting as members of the House of Lords. This is desirable as the Court will only decide points of law of public importance. Justice at the highest level should be transparent and the new Court will have a crucial role in letting the public see how justice is done.”

Jenny Rowe, Chief Executive of the Supreme Court, said: “The establishment of the Supreme Court is an important historic moment. The improvements and modernisation that this brings creates exciting new opportunities to show the wider public how justice is done at the highest level, to increase awareness of the UK’s legal systems and the impact the law has on people’s lives.”

Source: www.supremecourt.gov.uk

Justice Dinakaran & The Secret Collegium

The elevation of Hon'ble Justice P D Dinakaran has been kept on hold by the collegium.  The decision of the  collegium will be communicated to the Ministry of Law, where the file relating to the elevation of Justice Dinakaran along with four High Court judges is pending and the Ministry would proceed with the appointment of other four judges to the Supreme Court whose names have been cleared by the collegium. 

But will Justice Dinakaran continue as the CJ of the High Court?? Will he continue to hear matters and decide matters?? If he does so does the rules of judicial integrity allow it. The answer is an affirmative no. I do not question the involvement of Justice Dinakaran in the scandals but due to this issue the credibility of the Judiciary is going down each day. In order to reinstate that credibility in the minds of people, isn't it necessary that he should stay away from the Court and clear the way for a proper investigation and return back with clean hands, if his hand are clean !!!

The collegium has always been silent on the issue. It has never ever communicated its decisions to the open Court or made any statement so far. In the famous Justice Ramaswami's case Chief Justice of India Sabyasachi Mukharji asked Justice Ramaswami to abstain from the proceedings and hence He went on leave.

As Senior Advocate Anil Diwan says "Chief Justice of India Sabyasachi Mukharji’s advice to Justice Ramaswami to desist from discharging judicial functions so long as investigations continued is worthy of emulation." (http://www.hindu.com/2009/10/21/stories/2009102155680800.htm) 

I remember what Hon'ble  Justice Khanna wrote in the conclusion of his Making of India's constitution:

"If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. Imbecility of men, history teaches us, always invites the impudence of power."

Appointment of Supreme Court Judges

Article 124 (2) of our celebrated  Constitution says 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 sixty-five years and it also had a proviso attached to it that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

In July 1998, The then President K R Narayanan  referred nine questions to the court for consideration and sought its opinion in the context of the 1993 S.C. Advocates-on-Record Assn vs Union of India case which "has laid down the principles and prescribed procedural norms in regard to the appointment of Supreme Court judges, Chief Justices and judges of the high court and transfer of judges from one high court to another."

A nine Judges Bench in In re Presidential Reference, AIR 1999 SC 1, laid down various propositions and the most important among it is "As to appointment of the Supreme Court Judges, the Chief Justice of India should consult a collegium of four seniormost judges of the Apex Court. Even if two Judge give an adverse opinion, the CJI should not send the recommendation to the Government."

This is the history behind the creation of the collegium system. This present legal position is that once the CJI and the collegium make a recommendation practically nothing can be done to change it. Once a judge is  appointed, it is practically impossible to remove him or her from office because the process of impeachment of a judge by Parliament is long and a kind of herculean task. 

The drafters of our Constitution might have never even thought of this kind of a system. The appointment of the Judges was the duty of the President which has to be done in consultation with the CJI. The Indian Judiciary has grabbed this from the hands of the President and the President now merely gives assent to their decisions. This is nothing but judicial amendment of the Constitution. The recent issues with regard to appointment of certain Judges to the Apex Court clearly indicates that the collegium system has failed. It is high time the Parliament bring in a Constitutional amendment to change this system. As rightly observed by Hon'ble Mr. Justice H. R. Khanna "if no provision were made for amendment of the Constitution, the people would have recourse to extraconstitutional methods like revolution".