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    'There are misgivings about judges’ appointment Bills even among opponents of collegium system'

    Synopsis

    "I personally discussed these issues with several eminent, retired chief justices. However, now the battle lines are drawn and positions have hardened."

    The movement to bring about a change in the way judges are appointed started energetically in 2009, when Veerappa Moily took over as law minister and I became the Attorney General.

    There was agreement all around that the system had to change. A lot of time and effort went into formulating the constitutional amendments in the resultant Bill to replace the collegium system.

    I personally discussed these issues with several eminent, retired chief justices. We tried to address as many concerns as possible. However, now the battle lines are drawn and positions have hardened.

    On the one hand there are obviously the concerns of the judiciary – there is a strong feeling that the collegium system did not require wholesale displacement. Some tweaking and correction was necessary but the system could have been retained.

    Nobody can deny the problems that exist. Some outstanding judges were left out of promotions for reasons which may not have been explained and were, in some cases, highly doubtful. Equally, some undeserving candidates sneaked in. There is also general acknowledgment of the lack of transparency.

    The problem with the collegium system did not lie in mere exclusion of good people or inclusion of people for the wrong reasons. Talented people were delayed from coming into the Supreme Court, in several cases for reasons which appeared to be based on personal prejudices and predilections.

    So several good judges made it to the Supreme Court much later than they deserved, as a result of which they did not even get a chance to preside over benches or effectively contribute to the court.

    Not only were their careers affected, in some cases they were even deprived of holding the post of Chief Justice of India. There are several sitting judges even today who have been victims of this shortcoming of the collegium system.

    On the question of transparency, several chief justices have explained how the system worked and how much time and effort was invested by the collegium in going through the records of prospective candidates and analysing their work.

    However, these aspects cannot be expressed in public. After all, judges do not give media releases or hold press conferences. At the highest level, one has heard expressions of restrained anguish and concern by the Chief Justice of India. Judges could not and cannot say more.

    The situation has changed in the last couple of months. There have been dramatic disclosures and blog posts. The timing of such disclosures has been criticised in various quarters. Motives have been ascribed. However, what has been said has not been seriously controverted.

    These disclosures have focussed sharply on the underlying problems, and were one of the factors which galvanised the government into action. More so when highly respected former judges have confirmed the correctness of what was stated in these dramatic disclosures. In such circumstances, the seriousness of the issues just could not be brushed aside.

    Nevertheless, strong words were uttered the moment the constitutional amendments to set up a national judicial appointments commission were approved by Parliament, even by those who had earlier come out against the collegium system. Fali Nariman was first off the block. He expressed his point of view immediately after the Rajya Sabha approved the amendments.

    Kapil Sibal entered the fray shortly thereafter. Legal challenges have been threatened and are probably inevitable.

    Through all this the government seems to have decided, perhaps wisely, not to enlarge the public debate. The challenge would be met as and when it presented itself in court.

    Undoubtedly, that challenge is going to come. Battle lines will be sharpened. Issues will become more focussed. However, my concern is about what is going to emerge in the near future.

    There are so many alternatives before the court. One is, of course, to affirm the amendment Bill. The other would be to strike it down completely, on the ground that it violates the Constitution’s basic structure. I have serious doubts about the latter approach.

    The ‘basic structure’ which would be spoken of in the second approach would simply refer to the independence of the judiciary. But mounting a challenge on this ground is not going to be easy. It is all very well to call the independence of the judiciary a part of the Constitution’s basic structure.

    But this basic structure cannot be determined with respect to concepts. Instead it involves the words and provisions of the Constitution as originally enacted.

    Another approach could be to resort to some sort of mechanical surgery such as striking down some portions of the Bill. I am not very convinced such an approach will be practical or fully satisfactory.

    So what lies ahead? Are we on a collision course? Is there a possibility of consensus? Can consensus be resorted to in constitutional challenges? Can one approach issues only in black and white?

    This is my primary concern: I anticipate that positions on either side may harden. If so, concern for the system and judicial independence becomes greater.

    I started by asking, is there a way forward? It is for all of us to decide whether we want a solution or whether we want a perpetuation of the problem. The future of the judiciary rests on whether there will be emanci-pated statesmanship on all sides.


    The writer is a former Attorney General of India.
    The Economic Times

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