01, Oct 2009

The Times of India
October 1, 2009

The judgesÂ’ club

The Age Debate

Collegium needs a presidential check

Oct.01 : There is an unassailable argument for a re-look at the process of appointing Supreme Court and high court judges. The letter of the Constitution is clear that it is the President who appoints judges after consultation with the Chief Justice of India in the case of Supreme Court judges. In the case of high court judges, the Chief Justice of the high court as well as the chief minister and the governor were consulted. Over a period of time, however, the Supreme Court came to interpret the term “after consultation” (with it) in such a manner that it effectively became “after concurrence”. In other words, the apex court took its interpretation a little too far.

The function of the court is to interpret the law, and not to change it. But judges seemed to have used their creative jurisprudence in interpreting this particular provision.

If we look at the background of the issue, the function of appointing judges lay very much with the executive in the pre-Emergency days. The President would consult the Chief Justice and a couple of senior judges before taking a decision. During the Emergency, however, the executive, namely the then Prime Minister Indira Gandhi, appointed judges out
of turn.

Subsequently, the number of judges to be consulted, apart from the Chief Justice, was raised from two to five. Some of the names up for appointment would sometimes not be acceptable for various reasons. The President would even ask the Supreme Court to revisit the matter. It was also decided that the recommendations of the judgesÂ’ collegium had to be made in writing. If a judge disagreed with a decision, his opinion had to be placed on record. However, this arrangement too did not work. There is no concrete evidence to indicate what went wrong, but apparently the reason had something to do with the names being suggested by the collegium. They would at times be lacking in professional competency.

In the current case in the news, that of Justice Dinakaran, it would be very difficult for the government to accept the recommendation of the collegium. The collegium itself will have to reconsider his appointment. The committee to review the working of the Constitution set up in 2000, of which I was a part, has already recommended the creation of a National Judicial Commission that should look into the issue of appointments. There was confusion over who should be the chairperson of the commission. My recommendation was that the vice-president of the country should be given that position. However, the matter was not resolved. Essentially, the idea is to have a body other than the collegium that would decide appointments, though judges would not be excluded from it. The vice-president would have moderating influence.

Subhash Kashyap is former secretary-general, Lok Sabha