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The collegium system must be reformed

Hindustan Times | By
Jan 17, 2019 06:07 PM IST

The chief justice of India must speak up on the latest storm over judges’ appointment

The controversy over recent recommendations of the collegium once again highlights the need for collective leadership and transparent decision making in the Supreme Court. The current Chief Justice of India (CJI), Ranjan Gogoi, was one of four judges who asked for both in what’s now known as the Judges’ Press Conference (on January 12, 2018), when he was the third senior-most judge in the Supreme Court, and he should, now that he is in charge of the court, channel that demand into action.

Here are the facts of the ongoing controversy: the collegium decides on names for two positions in the court in December, but the final recommendation to the law ministry is not made, pending consultations with other judges in the court who served with those selected. The two names are leaked, apparently infuriating the chief justice, and one theory suggests that this is why the collegium decided to consider fresh names. This is a specious claim. In January, the collegium meets again, but this time discusses fresh names. The consultations are completed immediately after and two fresh names are recommended. One is of a judge criticised for his willingness to toe the executive’s line by the then second-most senior judge in the Supreme Court in March 2018. The other is of someone who is 33rd in terms of seniority (among judges of the high courts) and who, if elevated, will become the Chief Justice of India in 2024.No explanation is proffered as to why the two names all but finalised in December are dropped; nor is one offered on choosing someone once criticised for his conduct by a respected Supreme Court judge or why a chain of seniority is being broken in an institution driven by this seniority. At another level, this controversy should remind everyone of the need to reform the collegium system itself. The right to select judges to the Supreme Court was taken upon itself by the apex court in 1993 and revalidated in a 1998 judgment (Third Judges case). The current government tried to change that with the passage of a law on the National Judicial Appointments Commission, but the law was shot down — again by the Supreme Court. A so-called Memorandum of Procedure, on reforming this process of selecting judges, is now with the law ministry which has been reviewing it since September 2018.

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In a speech last year, Justice Gogoi said noisy judges and independent journalists were democracy’s first line of defence. Given the confusion around what actually happened between the two meetings of the collegium, and the various theories being speculated upon, he should speak up.

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