IN DEFENSE OF COLLEGIUM

Is it paradoxical, a judgment that too of the final arbiter, expected to set at rest all controversies, doubts, claims and apprehensions on a particular issue is generating further debates, arguments, points, counter-points; even more than what existed when the issue was seized for adjudication.

It is embarrassing for any lawyer that it has become a routine; judicial findings in high profile cases, the moment they are decreed, subjected to public scrutiny of a kind, we have never witnessed before; may be because of the reason that finding a media has become possible for anyone to standup and be expressed. For the past one week we have been poured with opinions on the NJAC judgment from all possible angles by the retired judges, jurists, lawyers, academicians, ministers, politicians, commoners leaving only the sitting judges as exceptions.

Ominous signs portending final voice of the highest court is not inspiring the confidence of all, or are they only symptoms of the emergence of an informed and vibrant democracy?

Even scientific theories on the properties of inanimate matters are scrutinized, proved to be wrong later; but it took time to improvise on the theories propounded. On the other hand, the judicial pronouncements particularly in this NJAC case, even before the ink dried on the paper, everyone from the high decibel electronic media to the cerebral print media and the lowly social media have joined in the chorus to chip out where it is lacking; forget to add political platforms.

Well, it is said that a debate, particularly in India never dies; certainly not by the sword of Supreme Court. Neither a sedition charge from a Magistrate can shut an argument, which unites us as a nation as propounded by Dr.Amartya Sen; disagree, he will be proved right.

Leave aside the precedents, laws involved and their complex interpretations, what we need is to have a solution to the vexed problem of selecting the best of the candidates as Judges. However the real problem is that there isn’t any such solution, which I feel the others have not taken note of; definitely not in constitution of NJAC.

If it is only in our country, where the Judges select judges, let that be; let others follow our model as a path towards a judiciary independent of the executive to the maximum. Judges tempered to be apolitical by the nature of their work and they not answerable to any electorate could form a better mind to choose candidates from the wide spectrum of ideologies. The judicial administration will be dynamic only when the law is allowed to be interpreted by judges having different beliefs and opinions. Executive, if allowed to have a say, I have no doubt may restrict the selection only to those candidates having mindsets of that of the ruling class by eliminating anyone they find unpalatable; a recent example we see in the case of Mr.Gopal Subramaniam’s miscarried selection.

Unfortunate, Chief Justice R M Lodha was on tour, denied an opportunity to persuade Mr.Gopal Subramaniam to withdraw. With NJAC he would not get any such opportunity at all.

Transparency, the word thrown ad nauseam to attack collegium is quite misplaced. It dogged my mind few years back to the point of pain, as to what could be the transparency in real terms when the Advocates in Chennai were protesting the recommendation of the candidates. If it meant the secrecy in the selection process, I too felt awkward and uncomfortable then. Judges unlike civil servants are not trained in facing criticisms, protests and public scrutiny and are expected to be more sensitive to publicly discussing their decision. Well, it may be true that they could not defend the attacks against their judgments but such discretion need not be restricted in their administrative actions, particularly when they do a public duty of selecting Judges. I wished sincerely then when the protests Madras High Court reached its peak, the High Court to call for a public hearing of the Advocates Associations by publishing the list of candidates chosen and the credentials submitted by the respective candidates.

Even under NJAC, this could be the only transparency possible and not a bit more. Except saying, a judge is to be a man of intelligence, discretion and honesty we cannot devise a scale to measure. Neither there is a guarantee how a man would conduct himself once he has become a Judge. We have seen advocates exhibiting every trick up their sleeve to save their case, coming upon more heavily on such practice once they become Judges.

Judgeship, particularly in High Courts or Supreme Court is not a promotion from the position of an Advocate. Except a kind of a honor of doing the God’s duty, it is only a disadvantage with which one has to live through. Probably, law could be the only profession, where one can find candidates choosing for a career change agreeing for a reduction of their monetary remuneration by 50% to 90% or even more in some cases; surely something lawyers can be proud of.

It is illogical to place the selection of judges on the same scale as in the selection of any other government employee. Judgeship will have to compromise its honor and prestige if we opt for inviting applications from the bar instead of inviting lawyers to the bench. I feel not many having aspirations to become a judge would like to make an application and to go through a selection process of exam, interview or even public hearing, subjecting themselves to embarrassment and sometimes humiliation. If framing a kind of such selection process is transparency, I fear it will spell doom for the aura attached to the judiciary, reducing it to any other government job. Besides, such process will invite litigations, challenging the selection, rendering the elevation a cumbersome process every time.

The main criticism against the Collegium is that it is dogged with nepotism at the cost of deserving candidates. In my opinion neither NJAC will cure this malady. Even with NJAC, it is the Judges of a High Court who will turn out to be the best persons to recommend candidates as they have the firsthand knowledge of the intelligence, discretion and honesty of the advocates practicing in their courts. Under Collegium system the Judges of Supreme Court is to approve such recommendation and such part will only be taken by the NJAC. In my opinion NJAC instead of helping in reducing nepotism may bring an additional hurdle for the elevation of candidates who exhibit a kind of political views not in line with the party in power. Even today weeding out of such inconvenient candidates is done and as admitted by then Chief Justice P Sadasivam that the Collegium was always considerate of the opinion expressed by the Government on the acceptability of a candidate.

The Chief Justice and the Senior Judges of the High Court and the Collegium of Supreme Court, we have to believe to render justice in the selection of the Judges and the only transparency which one can thought of is to publish the credentials submitted by the chosen candidates and to call for a public hearing of the Advocates Associations to attend before the High Court and to present their comments on the
candidates chosen for recommendation to the collegium.

Such open discussion on the integrity of the candidates, may in my opinion shall help in reducing favoritism and the selection of undeserving candidates. Every selection process will go on record and with such information available in the hands of the public, the Collegium will not be at ease or feel embarrassed in accepting an undeserving candidate.

Collegium is the better, if not the best system, we have thought of and the maladies of such system will crop up in every other system and NJAC is no exception. NJAC will only add to the woes by bringing hurdles to deserving candidates…