Eminent jurists, led by the former Chief Justice of India (CJI) J.S. Verma, have suggested the immediate setting up of an independent national commission empowered to appoint judges to High Courts and the Supreme Court.
Against the backdrop of the controversy over the Supreme Court collegium's proposal to elevate Karnataka High Court Chief Justice P. D. Dinakaran to the Supreme Court, Justice Verma, author of the majority opinion in the Second Judges Case, said the collegium system was not working properly. He, however, said it was wrong to say the system had failed.
Justice Verma was presiding over a meeting on the occasion of the Dr. Kailas Nath Katju Memorial Lecture 2009 here on Friday.
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In an apparent reference to Justice Dinakaran, he said the collegium could always withdraw its recommendation and this happened on several occasions in the past. It was wrong to say the collegium had no power to withdraw its recommendation.
Delivering the keynote address, on appointment of judges, senior lawyer Fali S. Nariman said he regretted winning the Second Judges Case, through which the Supreme Court took upon itself the task of clearing appointments to the higher judiciary.
(In 1993, the court by a majority of 7- 2, held that henceforth the CJI must take into account the views of senior colleagues for formation of collegiate opinion in appointment of judges. This system is being followed till now in the selection of judges.)
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Mr. Nariman said the recent instances of allegations against sitting judges, and the widespread belief that the collegium did not always recommend the best names to the Bench showed that the system had not lived up to expectations. "Today, for reasons I need not expand - I can only express my extreme anguish at the current state of ground realities in the matter of appointment of judges."
Describing the collegium's role as an extra-curricular activity imposed upon the five judges, he said recommending appointments to the highest court had not been done with the care and caution it deserved. "There is too much ad hocism and no established process of selection for recommendation."
In the Justice Dinakaran case, Mr. Nariman said, the lawyers were not seeking a "confrontation" with the judiciary. The idea was to bring to the judges' notice something they might not have noticed. Setting up the National Judicial Commission would help expedite appointments to the higher judiciary leading to speeding up of justice.
The former Lok Sabha Speaker Somnath Chatterjee said the collegium "has primacy in the matter of appointment of judges which is a bad thing. The Executive must have a role in the appointment process."
He said: "One of the immediate national agenda for governance should be the setting up of the National Judicial Commission to make recommendations for appointments in the Supreme Court and the High Courts and draw up a code of ethics." Referring to the cash-at-HC-judge's-doorstep scam, Mr. Chatterjee said he could not understand why nobody was punished.
Senior lawyer K.K. Venugopal said: "It is important for the government to have an independent NJC which should include the Leader of the Opposition and certain eminent jurists who are not members of the Bar." This would help in removing the inordinate delay in appointments. Apart from setting up the NJC, "the Supreme Court needs to reconsider its decision in the Second Judges Case in the famous Supreme Court Advocates on Record Association [SCAORA] case. The Supreme Court Bar Association has already passed a resolution accepting the provisions of the Constitution 67th Amendment Bill, which provides for the setting up of the NJC. The SCAORA judgment is in complete contrast to the SCBA views." Mr. Venugopal said.
Vinod Mehta, Chief Editor, Outlook, spoke.