APPOINTMENT OF JUDGES MUST CONFORM TO THE CONSTITUTION -BY SHANTONU SEN
Markandiya Nath Katju by writing a blog on the selection of Ashok Kumar whom he did not name, as a Judge in the Madras High court has set the cat among the pigeons . The faults in the Collegium system are now very much in the open. The fraternity both legal and bureaucratic are having a field day dissecting the present mode . One can expect no better given the colour of Justice Katju’s exposure. What is unnerving is while vying to send the Collegium packing the Executive is putting its weight behind a National Judicial Commission whose composition is advantage Executive. The two system are different and just because the present system has committed mistakes , even gross ones, it cannot be a argument in favour of what is being rushed in as a replacement. The new system must stand the test of being better. . Also, out right replacement of any system without attempting corrections is never a good answer.
The system which existed before appointment through the Collegium came about was not faultless. It gave unfettered power to the Executive. There are several instances of appointments of Judges which are in colourable exercise of Executive authority. One instance known to me can now be told as it happened When Sikkim acceded to India in the 70’s., one A M Bhattacharya was the Chief Legal Adviser to the Chogyal of Sikkim. B B Lal of the Indian Civil Service was accredited as India’s Agent in Sikkim . Indira Gandhi , the then Prime Minister of India for strategic reasons had decided Sikkim will be a State of India. B B Lal sought out A M Bhattacharya and asked him join him in helping the Chogyal to see that good sense demanded Sikkim join India and avoid the distinct possibility of suffering the fate of Tibet. The lawyer with extensive practice in the District Court of Siliguri joined hands with B B Lal in persuading the Chogyal to accept accession . No doubt he used his knowledge of the Chogyal life past and present . Sikkim became a State with a Governor and a High Court. B B Lal was the first Governor and A M Bhattacharya became a Judge of the Sikkim High Court. He was appointed to this august position though he did not fulfill the requirements of a Justice of a high Court as laid down in the Article of the Constitution of India to be a High Court Judge . The Executive flouted the Indian Constitution . He later served both as Chief Justice of Calcutta and Bombay High Court. He was compelled by Chief Justice of India Ahmedi to quit as Chief Justice of Bombay for reasons that may not be disclosed. Suffice it to say they were for corrupt practices. One more instance. The District Judge trying the alleged murderer of Syed Modi in 1988 in Lucnnow was transferred without completing his normal tenure. His replacement discharged Sanjay Singh and Ameeta Modi named as chief conspirators in the CBI charge sheet along with five others. Four months later this judge was elevated as a high court judge and sat on the Lucknow Bench of the Allahbad High Court. V P Singh was the Prime Minister of India and Garima Singh , the wife of Sanjay Singh was his niece. The Executive has not been an exact paragon of virtue while making appointments as Judges in several instances Law Ministers of India can be called to account for their role in this area
The lacunae in the Collegium system need to be exposed and opened to a thorough scrutiny. The opaqueness in the selection process has to go. The selection procedure in its entirety can be faithfully recorded and made available to challenge by a Constitutional Bench of the Supreme Court of India. Several other steps can be considered by powers that be and appropriately recorded in the procedure of selection to eliminate irregularities that have come to light already and ,in likelihood surface as a result of a detailed probe that could be carried out. Reverting to a system where the Executive will have a say in judicial appointments will be retrograde. When that was the case the Law Minister of India used to boast that only one judge of the Supreme Court of India (J Tulzapukar) stood up to him. . Justice Katju’s revelations expose the Chief Justice of India( Lahoti J ) the Prime Minister( Man Mohan Singh) and the Law Minister ( Bharadwaj), three people at the highest level. The Collegium had acted appropriately in rejecting the particular Additional Judge as a permanent Judge. The Collegium , administrative weaknesses removed, still remains best bet for the Indian Judiciary.
The Supreme Court’s 1993 and 1998 pronouncement’s set in motion, .by their interpretation of the Indian Constitution, the appointment of judges by the Collegium System. But they framed no rules and regulations to follow . Being new to administration they erred grievously. This fault can be corrected . There are other areas that possibly, will need changes and , no doubt, they too could receive attention. The Collegium System is now a part of our Constitution .. The proposed National Judicial Commission , already approved by the Union Cabinet might well be a replacement but if it is approved by a constitutional intervention the impression will remain that Collegium was not given a chance to plug the loop holes and improve its record only because the Executive wants to have a decisive say in the appointment of Judges.