New Delhi,18 June-2014,Parmod Kumar: The uncertainty over the appointment of senior counsel Gopal Subramaniam and Rohinton Nariman as judges of the apex court as recommended by its collegium of the chief and four seniormost judges is fuelling speculation with every passing day.
There is a commonality between Subramaniam and Nariman: both were solicitors general during UPA-II and had resigned following differences with the law minister at that point of time. While Subramaniam was in office from June 15, 2009, to July 14, 2011, Nariman served from July 23, 2011, to February 4, 2013.
Both Subramanian and Nariman are of redoubtable integrity, competence and capability as lawyers of eminence. Subramaniam resigned after Kapil Sibal abruptly, without informing him, handed over his brief to Nariman in the 2G case.
Subramaniam was the amicus curiae in the Sohrabuddin Sheikh stage shoot out case wherein he also pointed to the staged shootout of Tulsiram Prajapati.
But then, this is not the first time such a hiccup has occurred.
“But the situation is different today. The new government has a majority of its own. The Judicial Standards and Accountability Bill, 2010, that was moved by the previous Congress government can be reintroduced and passed to put in place a National Judicial Commission with a more accountable judiciary. The sooner the better.”
It was in 1993 that the Supreme Court created a collegium system of the chief justice and two senior-most judges for recommending the names of people to be appointed judges.
After the introduction of the collegium system, the first stand-off between the apex court and the government happened in 1998 when two of the six names recommended by then Chief Justice M.M. Punchi were objected to by the government.
It is all or none, said Chief Justice Punchi as he was asked to reconsider some of the names suggested.
The crisis was averted by making a presidential reference, the only outcome of which was that the collegium was expanded to include the chief justice plus the four senior-most judges.
Except for Chief Justice J.S. Verma, who used to hold wide deliberations before the collegium headed by him made recommendations, it was seldom practised in that desired way.
Eminent jurist Fali Nariman, in the chapter A case I won but which I would prefer to have lost of his autobiography Before Memory Fades has expressed extreme anguish at the current state of ground realities in the matter of appointment of judges.
But the extra-curricular task (imposed upon five seniormost judges by a judgment of the court itself), that of recommending appointments to the highest court, has not been conducted with the care and caution that it deserves. There is too much ad hocism, no consistent and transparent process of selection. As a result, the image of the court has gravely suffered.
Making a forceful plea for disbanding the collegiums system, Nariman says: I would suggest that close circuit network of five judges should be disbanded. They invariably hold their cards close to their chest. They ask no one. They consult no one but themselves. This has been a pattern of functioning for years.
There are well-founded serious reservations on the way the existing collegiums system has worked or is working except during the tenure of Chief Justice J.S.Verma. It was sought to free the judicial appointments and transfers from the clutches of the political executive (government) but it has got caught in its own intricacies.
The next course is setting up the mechanism of a National Judicial Commission for the selection and appointment of judges.
The Law Commission of India, on July 31, 1987, recommended the setting up of a National Judicial Service Commission.
Since 1990, three attempts were made to amend the constitution for setting up National Judicial Commission – during the V.P.Singh government, the Chandra Shekhar government and the Atal Bihari Vajpayee government in 2003. Each time the move got aborted because the Lok Sabha term came to an end.
One thing that needs to be noted is that the desired objective of the collegium system got derailed because at the time when it was introduced, the country never had a stable and decisive government or a scam-free government not facing the apex court’s wrath. So it had little nerve to question the apex court on its recommendations.
But the situation is different today. The new government has a majority of its own. The Judicial Standards and Accountability Bill, 2010, that was moved by the previous Congress government can be reintroduced and passed to put in place a National Judicial Commission with a more accountable judiciary. The sooner the better.
( Parmod Kumar is the IANS Legal correspondent. The views expressed are personal. He can be contacted at email@example.com)